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Municipality of Anchorage v. Gregg (11/12/2004) sp-5842
Municipality of Anchorage v. Gregg (11/12/2004) sp-5842
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MUNICIPALITY OF )
ANCHORAGE and MARC ) Supreme Court No. S-10722/10751
WOODWARD, )
) Superior Court No.
Appellants/Cross-Appellees, ) 3AN-98-10263 CI
)
v. ) O P I N I O N
)
THERESA A. (WIMER) GREGG, ) [No. 5842 - November 12, 2004]
)
Appellee/Cross-Appellant. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Rene J. Gonzalez and William F.
Morse, Judges.
Appearances: Linda J. Johnson, Deputy
Municipal Attorney, and William A. Greene,
Municipal Attorney, Anchorage, for
Appellants/Cross-Appellees. Kenneth W.
Legacki, Anchorage, for Appellee/Cross-
Appellant. Jonathan P. Meier, Sirianni Youtz
Meier & Spoonemore, Seattle, for Amici Curiae
Northwest Womens Law Center and Alaska
Network on Domestic Violence and Sexual
Assault.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
Theresa Gregg sued the Municipality of Anchorage and
her supervisor, Sgt. Marc Woodward, for violating her right to
protected leave under the Family and Medical Leave Act (FMLA).
In a bench trial, the superior court found that the Municipality
had violated the Act by refusing Gregg leave while she was
incapacitated by a serious health condition: the combined effect
of her pregnancy, injuries from a car accident, and severe
emotional stress. The Municipality appeals, disputing Greggs
qualification for the FMLAs protection, the factual findings of
the trial court, and its award of damages. Gregg cross-appeals
that she was improperly denied liquidated damages. Both parties
assert that the courts calculation of interest on Greggs award
was erroneous. We affirm the trial courts judgment that the
Municipality violated Greggs right to protected leave under the
Act, correct two errors in the courts calculation of damages, and
remand for reconsideration of the award of prejudgment and
postjudgment interest and liquidated damages.
II. FACTS AND PROCEEDINGS
In this case the superior court made extensive findings
of fact. The thrust of the Municipalitys appeal is that some of
these findings are in error and cannot support the trial courts
decision. We summarize the record and the courts findings as
follows.
The Anchorage Police Department (APD) hired Theresa
Gregg (formerly Wimer) in March of 1995. In late 1996 Gregg
transferred to the APDs warrant section, where her supervisor was
Sgt. Marc Woodward. Greggs employment record was excellent, and
she was held in high regard by her fellow officers.
In January 1997 Gregg was involved in a car accident.
At the time of this accident, Gregg was married to Michael Wimer
but was approximately two-and-a-half months pregnant with a child
by her current husband, APD officer Jeffery Gregg. On January
10, Woodward placed Gregg on sick leave status because of her car
accident injuries.
During this leave, Greggs husband, Michael Wimer, an
Army JAG officer, was arrested for threatening to kill Jeffery
Gregg. The trial court summarized the events leading to Wimers
arrest as follows:
Theresa was married to Michael Wimer and they
had two minor children . . . . Theresa
described her marriage to Michael as an
unhappy marriage. It involved domestic
violence where Michael was mentally abusive
and exercised extreme control over all facets
of her life. Theresa became involved in an
extra-marital affair with another police
officer, Jeffery Gregg, with whom she became
pregnant. When Michael discovered that
Theresa was pregnant with Greggs child, he
called Gregg and threatened him. Gregg filed
a criminal complaint against Wimer and an
arrest warrant was issued. Theresa felt that
she was in a hostage situation with Michael
and cooperated with APD to get Michael in a
disadvantaged situation in a public place for
the arrest to take place. The arrest took
place at the Buckner Field House at Fort
Richardson military base.
The parties stipulated that during January, three
different health care providers treated Gregg. Dr. Cynthia
Brooke examined Gregg for her pregnancy, and in a letter dated
January 14, requested that lighter duties be assigned to [Gregg]
for the remainder of her pregnancy. Dr. Ronald Firth examined
her accident injuries and released her back to full, unrestricted
duties as of January 27. Gregg was still suffering pain from her
accident injuries and saw Dr. Firth again on January 28. On this
visit she also discussed the stress of her marriage. Dr. Firth
prescribed her Valium. Although she was technically released
back to work, Gregg did not return to the department and remained
on paid sick leave. The trial court found that [t]he two work
releases Theresa received were related only to the injuries
sustained in the car accident and to her pregnancy. The work
releases did not address . . . the psychological stress she was
suffering as a result of the domestic violence and subsequent
arrest of her husband.
Gregg and Woodward discussed her leaving the state
while she was on sick leave. Woodward was concerned about Greggs
domestic situation. Before Wimers arrest, Woodward reported his
fear that Gregg was at risk of harm from domestic violence.
After Wimers arrest, APD Captain William Miller suggested to
Gregg that she go somewhere she felt safe.
Wimer was arraigned on February 5. Gregg was present
at the arraignment. At the arraignment, Wimer stated that he was
getting ready [for a permanent change of station] within a couple
weeks. Gregg also told the court that [w]ere moving, and she
agreed to be Wimers third party custodian.
On February 5, Woodward wrote a memo to Captain Bruce
Richter explaining that [Gregg] wants to go to her mother[]s in
Florida with her kids to work things out. She is still on sick
leave and is planning to see a doctor there to continue
treatment. Captain Richter approved Greggs request.
Gregg left Alaska for Florida. Wimer followed her, and
eventually obtained a transfer to Virginia. The couple
unsuccessfully attempted a reconciliation. At some point, Jeffery
Gregg went to Virginia, endeavoring to bring Theresa Gregg back
to Alaska. This led to a physical confrontation between Jeffery
Gregg and Michael Wimer. Jeffery Gregg returned to Alaska
without Theresa.
From February until the end of March, Gregg was in
regular contact with the department through Woodward. On
March 3, 1997, Woodward changed Greggs leave status from sick
leave to annual leave when he learned that she was medically
released back to work. Gregg intended to return to her job, and
she requested to be placed on leave without pay status in order
to resolve her personal issues. Woodward told her that the
department had denied her request.
At trial, the command staff above Woodward denied
knowledge of Greggs request for leave without pay. Under the
departments policies, a supervisor must inform an officer who
makes an oral request for leave without pay that such requests
are to be made in writing to the chief of police. Woodward never
told Gregg that she needed to file a written request. Although
aware that Gregg was in need of mental help at this time and
knowing that she had begun her leave suffering from injuries,
pregnancy, and tremendous domestic stress Woodward also failed
to inform Gregg of her rights to leave under the state and
federal family and medical leave acts. In fact at no time,
before or after Greggs pregnancy, accident, and request to leave
the state, did anyone from the APD tell Gregg of her right to
statutory leave.
On April 11, a Friday, Woodward told Gregg, who was
apparently still in Florida, that she must return to work on
Monday or be terminated for abandoning her position. Gregg asked
for more time to get her life together, to address her financial
situation that needed to be put in order, to deal with her
pregnancy, to protect her children, to deal with her injuries . .
. all these things. For the second time she asked for leave
without pay, but Woodward told her that this request had been
denied.
Gregg knew that termination would threaten her officer
certification, which would in turn harm her chances of rehire
with the department. On the day of her conversation with
Woodward, Michael Wimer faxed a copy of Greggs signed resignation
to the department. Within days, Gregg called Woodward to cancel
her resignation, but he refused.
Greggs resignation terminated her employment with the
department effective April 11. Department personnel director
Wray Kinard indicated on Greggs personnel action form that Gregg
was eligible for rehire. On a second personnel action form,
filed May 6, 1997, Kinard changed Greggs rehire recommendation to
a negative. In a note attached to the form, Kinard stated,
[Gregg] left the state without notification or coordination with
APD. She resigned by FAX transmission. Kinards negative
recommendation was based on information provided by Woodward,
which the court found to be factually incomplete and inaccurate
in many significant regards.
After Gregg returned to Anchorage in August 1997, she
twice applied for rehire with the department. The department
denied Greggs applications because of Woodwards criticism.
On January 22, 1999, Gregg sued Woodward and the
Municipality alleging, among other claims, that the Municipality
had wrongfully terminated her and violated the Family and Medical
Leave Act. In a bench trial before Judge Rene Gonzalez in July
of 2001, the superior court found that the Municipality had
violated Greggs FMLA rights and wrongfully terminated her. The
court awarded Gregg economic losses of $628,706.27, but found
that liquidated damages were unwarranted. The Municipality
appeals, and Gregg cross-appeals.
III. DISCUSSION
A. The Municipalitys Appeal
The Municipality argues that the court erred in finding
that it violated the FMLA because Gregg did not suffer from a
serious health condition or undergo continuing treatment as
defined in the Act; because she failed to give notice as the Act
requires; and because the APD had already given her leave
equivalent to the amount the Act would have granted her. The
Municipality also contends that the court erred in finding that
it wrongfully terminated Gregg, and in finding Greggs testimony
credible. Finally, the Municipality argues that the court erred
in its calculation of damages and in its award of postjudgment
interest.
1. Standard of review
To the extent that the trial courts decision relied on
findings of fact, we review under the clearly erroneous standard.1
Under this standard we reverse only when we are left with a
definite and firm conviction that a mistake has been made.2
Therefore, we must take the view of the evidence most favorable
to the prevailing party below, and give due regard to the trial
courts opportunity to judge the credibility of the witnesses. 3
We review questions of law de novo.4 A claim under the
FMLA involves an objective test of the plaintiffs incapacity,
which, if heard by a fact-finder, presents mixed questions of law
and fact.5
2. Family and Medical Leave Act
Under the FMLA,6 an employee is entitled to 12
workweeks of leave during any 12-month period for childbirth or
adoption; to care for a close relative with a serious health
condition; or if the employee is unable to perform work-related
duties due to a serious health condition.7 The Act makes it
unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right the Act
provides.8
The superior court found that Gregg was entitled to
FMLA leave because she suffered from a serious health condition
that made her unable to perform the functions of a police
officer. Regulations implementing the Act define a serious
health condition as a period of incapacity of at least four
consecutive days that also involves continuing treatment by a
health care provider.9 They further define incapacity as an
inability to work, attend school or perform other regular daily
activities.10 A plaintiff shows that he or she underwent
continuing treatment by evidence that the plaintiff sought
treatment two or more times from a health care provider.11 In
short, the federal regulation allows an employee to claim
protection under the Act when she is able to show that she had a
period of incapacity that lasted four or more days and involved
at least two treatments from a health care provider.12
a. Incapacitation due to a serious health
condition
To claim the protection of the FMLA, Gregg had first to
demonstrate that she was incapacitated for four or more days and
unable to perform the essential functions of her employment.13 It
is evident from its decision that the court found Gregg was
incapacitated by multiple health conditions from January until
April 11, 1997. The superior court found that when Gregg
requested leave without pay on April 11, she was clearly
suffering from the cumulative effect of several health and mental
conditions that constituted a serious health condition that made
her unable to perform the functions of a police officer. These
included the facts that [s]he was pregnant, she was recovering
from injuries sustained in an automobile accident and she was
going through significant mental stress. She was a victim of
domestic violence and she needed time to deal with her personal
issues.
The court specifically found that testimony by Greggs
expert, Dr. Cynthia Dodge, who retroactively diagnosed that Gregg
had suffered from post traumatic stress disorder from January to
July 1997, had the strong ring of truth. Dr. Dodge based her
conclusion on the traumatic event[s] of domestic violence that
Gregg suffered in January of that year. Dr. Dodge explained that
the symptoms of nightmare[s] . . . intrusive memories . . .
high levels of anxiety to the point of sleeplessness . . .
confusion, feeling overwhelmed and distressed, and a
hypervigilance that Gregg reported were all consistent with a
diagnosis of post traumatic stress disorder. The doctor further
concluded that Greggs accident injuries and pregnancy contributed
to this condition.14
Dr. Dodges testimony is the only medical evidence that
Gregg suffered from an incapacitating health condition in April
1997. The parties stipulated that Gregg did not receive
treatment from a health provider in April for either her
accident injuries or emotional distress and Gregg presented no
evidence at trial to show whether or not she received care
related to her pregnancy at that time. It is undisputed that the
health professionals that Gregg saw in January released her back
to her duties.
The Municipality disputes the courts conclusion on two
levels. First, it argues that, as a matter of law, Gregg cannot
establish that she was incapacitated in April, when she requested
further leave, because she did not obtain a contemporaneous
medical providers diagnosis that she was unable to work.
Secondly, it argues that Dr. Dodges testimony is not credible,
and that therefore the trial courts finding is without basis.
Based upon its reading of federal precedent, the
Municipality argues that the FMLA requires a contemporaneous
diagnosis of the employees incapacity by a health care provider.
It notes that Gregg was, at the time of her request for leave,
technically released back to work. And it points to the fact
that Gregg saw no additional doctors in April to establish that
she was not entitled to the Acts protection at that time.
It is true that federal courts generally require that a
plaintiff base proof of an FMLA claim on a health care providers
diagnosis, at some point, that the employee cannot work (or could
not have worked) because of the illness.15 But we do not read
this precedent as substituting the opinion of on-the-scene
medical professionals for the ultimate judgment of the fact-
finder. For one thing, an employee could, as in this case,
suffer from a condition, such as post traumatic stress disorder,
which is not immediately capable of diagnosis by a non-
specialist. When an employee is actually incapacitated by
illness, the failure to get a correct diagnosis cannot disqualify
an employee from the Acts protection. To hold that a doctor must
agree, contemporaneously and at all times, that the employee is
unable to work, places a burden on the employee that we find
nowhere in the plain text of the Act, and ignores the reality of
debilitating illness.
Instead, the Act allows an employer to request a
contemporary diagnosis at the time it grants FMLA leave; a
safeguard that balances the rights of employer and employed.16
The Municipality did not do so.17 While this does not obviate the
requirement that Gregg show that a medical professional
considered her to be incapacitated, there was substantial
evidence in the record in addition to Dr. Dodges testimony that
corroborates the conclusion that Gregg was incapacitated.18 Once
the trial court accepts evidence of a medical professional, in
this case Dr. Dodge, that the plaintiff was incapacitated, that
finding is protected by the clearly erroneous standard.19
The Municipality also argues that the fact that health
care providers she saw in January actually released Gregg back to
work should bar her claims of incapacity in April. While the
health care providers that Gregg saw in January 1997 released her
back to work, the court found that possibly due to the narrow
focus of their examinations they did not fully diagnose her
combination of debilitating health conditions. In fact, they
were unable to determine the extent of even her knee injuries
because she could not be x-rayed while she was pregnant. The
court found that Gregg continued to suffer pain from her accident
injuries, and neither release adequately addressed her
psychological stress. We conclude from these findings that in
the course of Greggs visits to health care providers in January,
the extent of her incapacity was never fully diagnosed, and,
therefore, the partial releases do not bar her claim.
The Municipality also disputes the factual basis of the
courts decision. It asserts that Dr. Dodges testimony was not
credible because her diagnosis was retroactive; because it did
not definitely establish that Gregg was incapacitated for three
or more days in April; and because Dr. Dodge did not know what
the functions of the job of a police officer at APD were . . .
[she] therefore could not and did not render an opinion of
whether [Greggs] alleged post traumatic stress disorder would
have prevented her from performing the functions of her police
officer job. The Municipality also notes that Dr. Dodge
concurred that malingering should be suspected when a litigant
seeks a post traumatic stress diagnosis. We address each of
these concerns with Dr. Dodges testimony in turn.
While courts have rejected retroactive diagnoses, it is
generally for other evidentiary reasons, such as when the
diagnosis was also speculative or given without actually
examining the patient.20 The cases cited by the Municipality do
not hold that retroactive medical diagnoses may never establish
an FMLA claim. Here, the superior court was in the best position
to weigh Dr. Dodges retroactive diagnosis, subject to the rules
of evidence, and concluded that her opinion was credible. We
will not second guess the credibility of a witness on review.
The Municipality also argues that Dr. Dodges testimony
did not establish that Gregg suffered from a period of incapacity
in April because Dr. Dodge did not know when the post traumatic
stress disorder began nor when it ended, and so could not have
testified that a definite period of incapacity existed. The
Municipality is correct that Dr. Dodge could not determine the
exact date when Greggs mental and emotional stress became
incapacitating. But Dr. Dodge did state that it was her opinion
that Gregg suffered the symptoms of a stress disorder from
January to July 1997. In this bench trial, it was the courts
role to determine if this broad diagnosis, together with the
other facts of the record, reasonably established that in April
Gregg was incapacitated for three or more days.
Finally, the Municipality asserts that Dr. Dodge was
not qualified to decide if Gregg was unable to perform the duties
of a police officer. Dr. Dodge admitted that she did not know
the basic qualifications of a police officer, but she also
testified that, in her opinion, a person suffering from post
traumatic stress disorder would not be competent for police work
because of the high level of symptoms. What Dr. Dodges testimony
lacked in precision on this point is supplied by other non-
medical evidence in the record.
Beyond Dr. Dodges diagnosis, the facts as found by the
trial court support its conclusion that Gregg was incapacitated.
Significantly, Woodward, Greggs immediate supervisor and the only
department officer reviewing her case, admitted in testimony that
Gregg might have required a psych evaluation before she could
return to work to see if her emotional stress was affecting her
judgment. The Municipality as much as admits this in its brief
when it states, Based on what he had seen of [Greggs] behavior,
Woodward believed that she should have been assessed for judgment
issues. Judgment is a key concern for police officers. Gregg
did testify that she continued to suffer from pain from her
accident injuries and saw a specialist in October 1997, when she
could be x-rayed after the birth of her child. And the fact that
Gregg was in an abusive domestic relationship is relevant. A
reasonable person could conclude that Gregg was effectively
unable to work because she fled the state to leave an abusive
husband who followed her, and that she was unable to perform
daily activities because she was held in a hostage situation,
where her behavior was dictated by the combination of fear for
her children, a high level of emotional stress, her accident
injuries, and her pregnancy.21
b. Continuing treatment
To earn the protection of the FMLA for a serious health
condition, a plaintiff must also establish that her period of
incapacity involved treatment two or more times by a health care
provider.22 The Eighth Circuit has observed that this reflects
the [Department of Labors] decision that serious health condition
should be defined by an objective test that could be applied
consistently based on the facts of each case.23 The superior
court found that Gregg had satisfied this requirement because she
visited three medical providers for treatment of her accident
injuries and pregnancy in January 1997.
The Municipality maintains that the superior court
erred in relying on this period of treatment because these
providers released Gregg back to light duty at the end of
January. It contends that Gregg would have to show that she
received treatment in April when her request for further leave
was denied, to qualify for further FMLA leave.
The Municipalitys first argument would read into the
regulations a requirement that the length of an employees leave
should be determined by a medical professional, rather than
decided as an accommodation between employer and employee. The
purpose of the second regulatory factor is verification. It
simply requires that the employees serious health condition be
serious enough to require two or more visits to a health care
provider.24 Such is the objective test.25 The Act then entitles
the employee to leave for any subsequent treatment or period of
incapacity relating to the same condition.26
The plain text of the regulation proves that it was
unnecessary for Gregg to seek further treatment in April and yet
still claim the Acts protection. Gregg saw three health
providers in January. The court found that she was still
suffering pain from the car accident after her visits, and that
these trips to the doctors did not address the complete extent of
her psychological stress. Gregg testified that she discussed the
stress of her marriage with at least one of them, who prescribed
Valium to Gregg according to his medical records. Thus, we may
reasonably conclude that Gregg first qualified for FMLA leave in
January, and since the trial court found that the same health
conditions that caused her to seek treatment in January persisted
through April, Gregg suffered through April a period of
incapacity relating to the same conditions sufficient to satisfy
the plain text of the regulation.27
c. Notice requirement
To invoke the protection of the FMLA, an employee must
notify his or her employer of her intention to take leave.28 The
requirements of this rule are flexible. If the employees need
for FMLA leave is based on foreseeable events or treatment,
thirty days notice must be given to the employer.29 Otherwise,
the employee should give notice as soon as is practicable.30 When
the need for leave is unforeseeable, the employee need not
expressly assert rights under the FMLA or even mention the FMLA,
but may only state that leave is needed.31 Under this standard,
whether an employee has given adequate notice will depend on the
facts and circumstances of each case.32 The critical question is
whether the information imparted to the employer is sufficient to
reasonably apprise it of the employees request to take time off
for a serious health condition.33 Accordingly, the test of
whether or not an employee has given adequate notice is a factual
one that we review for clear error.34
The Municipality argues that Gregg failed to give
sufficient notice because she stated only that she needed time to
get her life back together on April 11 when she requested leave
without pay. It asserts that Gregg, at a minimum, needed to
alert Woodward of her need for medical treatment or another
qualifying reason under the FMLA.
The trial court found that Gregg gave proper notice,
although she did not expressly invoke the FMLA. The record
supports this conclusion. The Municipality placed Gregg on sick
leave initially and, although her status changed to annual leave
in March, the department never alerted her to her rights under
the FMLA. Woodward was in weekly contact with Gregg and was
aware of her injuries and domestic situation. The court found
Greggs testimony was credible that she informed Woodward on April
11 that she needed more time to deal with her injuries. It
concluded that any reasonable person would have seen . . . the
significant mental stress [Gregg] was suffering from during the
relevant times in this case. But neither Woodward nor the
responsible department officer, Kinard, alerted Gregg to her
rights under the FMLA or considered how the Act might grant her
protected leave for her incapacity.
The court reasonably determined that Gregg could not
foresee her need for further leave on April 11. Gregg was in a
stressful domestic situation, she had left Alaska, and Woodward
presented her with an ultimatum on April 11 to either return to
Alaska within three days or risk termination for abandoning her
position. Therefore the Municipality cites incorrectly to the
stricter standards of notice for foreseeable leave, 29 C.F.R.
825.302(c), rather than 825.303, which governs unforeseeable
leave. The Municipalitys reliance on case law is similarly
misplaced.35 Instead, federal precedent supports a finding of
proper notice where, as here, the plaintiff was initially placed
on sick leave and mentioned an illness during her request for
leave.36
d. Extent of leave under the FMLA
Finally, the Municipality claims that even if Gregg
established the elements of her FMLA claim, she did not qualify
for further FMLA protection because by April 11, 1997, the
Municipality had already given her the full extent of leave
permitted under the Act. According to the Municipalitys
argument, Gregg took thirteen weeks of leave before she resigned,
which is actually more than the Act guarantees, thus she suffered
no prejudice from its refusal to grant her further leave.37
The Municipality failed to raise this factual argument
in the trial court, and it misstates the trial courts conclusion
on appeal. The Municipality could be correct only if the court
had found that it violated 29 C.F.R. 825.700(a), the failure to
properly designate Greggs leave. Section 825.700(a) provides in
pertinent part that [i]f an employee takes paid or unpaid leave
and the employer does not designate the leave as FMLA leave, the
leave taken does not count against an employees FMLA entitlement.
For 825.700(a) to be relevant, the Municipality would have had
to establish that it had granted Gregg twelve weeks of FMLA leave
concurrent with her regular department leave, and had simply
failed to designate it as such. Instead the court found that
Gregg was entitled to further FMLA leave in April, when she was
forced to resign.38 How much additional leave is a question of
fact, which cannot be raised for the first time on appeal.39
3. Wrongful termination
The trial court held that Gregg had proved her claim of
wrongful termination by a preponderance of the evidence because
she was constructively discharged40 forced to either resign or
risk being fired and losing her certification on April 11 in the
course of seeking leave that she was entitled to under federal,
state, and local laws.
The Municipality claims that Gregg had a choice other
than resignation, because she could have returned to a light duty
position at APD, and because she was not receiving any medical
treatment which would have prevented her from returning.
However, the court held explicitly that it was reasonable for
[Gregg] to resign based upon the facts of the case. This finding
may only be reversed if clearly erroneous, and there is
sufficient evidence in the record for the court to reach this
conclusion.41 The Municipalitys argument that no reasonable
person would have felt compelled to resign in Greggs situation
is similarly defeated by the findings of the trial court that
Gregg was between a rock and a hard place where she had to choose
resignation to protect her certification.
4. Greggs testimony
The Municipality debates the trial courts findings in
favor of Gregg on several disputed facts. It argues that the
courts belief in Greggs testimony was clearly erroneous because
other facts in the record contradict her version of events. The
Municipality outlines four points of error: (1) that Greggs
testimony regarding her actions at her husbands bail hearing was
inaccurate; (2) that Greggs testimony about her purpose for
leaving Alaska contradicts her earlier admissions; (3) that Gregg
resigned for reasons other than the trial courts conclusions; and
(4) that other evidence contradicts Greggs claim that she
attempted to rescind her resignation.
Because they required an assessment of Greggs
credibility, we shall affirm the trial courts conclusions on
these points unless clearly erroneous.42 To reverse, we must have
a definite and firm conviction that a mistake has been made.43
Gregg reminds us that a trial court does not err simply by
choosing between conflicting evidence.44 Insofar as the
Municipality relies upon Woodwards testimony to contradict Greggs
version of events, Gregg points to the trial courts finding that
Woodward was less credible than other witnesses who confirm her
recollections.
The Municipalitys first contention is that Greggs
deposition testimony that she waited outside her husbands
February arraignment is irreconcilable with her appearance in the
actual record of that proceeding. At trial, Gregg admitted that
she had made a mistake during the deposition: that she had simply
forgotten that she did, in fact, enter the courtroom for Wimers
arraignment. The court was aware of her inconsistency. It was
brought out by the Municipality during cross-examination, and it
was within the courts discretion to accept Greggs excuse.
Second, the Municipality protests that Gregg told the
judge at that arraignment that she expected her husband to follow
her out of state, which is inconsistent with Greggs testimony in
this case that she fled the state to escape the domestic violence
of her marriage. Again this inconsistency was explored by the
Municipality during cross-examination, and the court found that
Gregg left Alaska to be where she had family support.
Third, the Municipality argues that the trial courts
conclusion that Gregg had to resign to protect her certification
conflicts with the fact that her then husband, Michael Wimer, who
knew nothing of her conversations with Woodward, faxed in her
resignation. The Municipality maintains that this establishes a
fundamental inconsistency and proves that Gregg was in fact
reconciling with Wimer in April when she resigned and did not
intend to return to the department. But the fact that Wimer
faxed in Greggs resignation is equally consistent with the
premise that Gregg knew she had to quit to preserve her
certification, knew Wimer wanted her to quit, and allowed him to
fax in the resignation without explaining the circumstances of
her conversations with Woodward.
Finally, the Municipality contends that no evidence
corroborates Greggs testimony that she called Woodward to rescind
her resignation. The Municipality notes that Gregg did not
mention the fact that she had attempted to rescind her
resignation either in the course of background interviews during
her attempt to get rehired, or in a subsequent taped conversation
with Woodward. Indeed, at trial the court allowed the
Municipality to fully impeach Gregg with this evidence. Our
review of the record convinces us that, on this point as well as
those above, the court reasonably decided between conflicting
accounts and evidence.
5. Prejudgment and postjudgment interest awards
The Municipality asserts that the trial court
incorrectly calculated the interest on Greggs damages. The FMLA
specifically allows for an award of interest on lost wages.45
Under Alaska law, prejudgment interest is a substantive right of
an injured party.46 The ordinary rule is that when suit is
brought in state court under a federal statute, the substantive
provisions of federal law govern the action.47 For this reason,
prejudgment and postjudgment interest calculations on FMLA claims
should be decided under federal law.48
Precedent interpreting the interest award provision of
the FMLA is sparse.49 Generally, the rate of federal prejudgment
interest is at the discretion of the trial court, with the goal
of fairly compensating the plaintiff.50 The date when prejudgment
interest accrues, unlike under our own statute, is also at the
discretion of the court with the same aim in mind.51 Postjudgment
interest is specifically provided for by statute. Under 28
U.S.C. 1961, postjudgment interest shall begin at the date of
entry of judgment and be set at a floating market rate.52
After considering the memoranda of the parties, the
court found that federal law should determine the interest on
Greggs judgment, rather than Alaska statute. The court concluded
that it should calculate prejudgment interest at a variable
yearly rate from the date of Greggs termination until the
beginning of trial, and that postjudgment interest should
commence at the date of trial. In setting the rate of
postjudgment interest, however, the court found that the rate set
by AS 09.30.070 should govern.
The Municipality argues that the court incorrectly
calculated prejudgment interest because under Alaska law
prejudgment interest accrues from the day the defendant receives
notice of the complaint.53 But here federal law applies and the
timing of prejudgment interest is at the courts discretion. Even
under our own statute, we have held that when the plaintiff
claims economic damages, prejudgment interest should commence
upon the date of injury.54 It was within the courts discretion to
decide that Greggs award of back pay and prejudgment interest
should begin on April 11, 1997, the date she was constructively
discharged.
Next, the Municipality argues that postjudgment
interest should have begun upon final judgment, rather than at
the commencement of trial as the superior court decided. It
suggests that a final, appealable judgment is a clear demarcation
line, rather than the arbitrary date chosen by the trial judge.
The court decided that because of the facts of the case and
nature of the damages experts testimony, that the date of final
judgment was an arbitrary date, and chose the approximate date
the trial began instead. Since federal law governs Greggs award
of damages, postjudgment interest should have been calculated
from the date specified in 28 U.S.C. 1961: [postjudgment]
interest shall be calculated from the date of the entry of the
judgment. Under the plain terms of the federal statute the
Municipality is correct: the obligation to pay postjudgment
interest only arises after the court renders final judgment.
Similarly the rate of postjudgment interest should be the
floating market rate prescribed by 28 U.S.C. 1961. We therefore
remand for the trial court to recalculate Greggs postjudgment
interest from the date of final judgment.55
B. Greggs Cross-Appeal
1. Liquidated damages
On cross-appeal, Gregg asserts by a number of arguments
based on policy and precedent that the court improperly denied
her liquidated damages.56 Upon proof of a violation of the FMLA a
plaintiff is entitled to lost wages, actual damages, and
interest, plus an equal award of liquidated damages.57 The court,
in its discretion, may reduce the plaintiffs award to
compensatory damages alone if the defendant proves to the
satisfaction of the court that the act or omission which violated
[the Act] was in good faith and that the employer had reasonable
grounds for believing that the act or omission was not a
violation of [the Act].58
The trial court declined to award Gregg liquidated
damages, finding only that Woodwards lack of knowledge on the
applicability of the FMLA when he informed Theresa that her leave
without pay request had been denied does not establish that he
was acting in bad faith. This finding does not satisfy the
requirements of the Act. The Act requires liquidated damages
unless the court makes express findings that the employer
violated the Act in good faith and that there was a reasonable
factual basis for the employers action; in that case, the court
may reduce the amount.59 In the superior courts written decision
there is no indication that the Municipality proved to the court
that it refused Greggs April leave request in good faith, or that
there was a reasonable basis for the Municipality to do so.
Given the incomplete findings of the trial court, we cannot
resolve the issue, but on remand the court shall determine if the
Municipality affirmatively established that its refusal to grant
additional leave was in good faith and that reasonable grounds
supported its decision.
2. Rate of postjudgment interest
Gregg further claims that the court should have applied
the higher state statutory prejudgment interest rate rather than
the federal. The main thrust of Greggs argument is that since
she pursued state and common law claims in addition to her cause
of action under the FMLA, the higher state rate should apply.
She relies in chief upon a Pennsylvania Superior Court case,
Humphries v. Pittsburgh and Lake Erie Railroad Co.60 Humphries
presented the question whether the state rule of prejudgment
interest applied to an action brought in state court under the
Federal Employers Liability Act (FELA).61 The court first noted
that, albeit a federal court sitting in diversity must look to
local law to determine the availability of prejudgment interest,
such is not the rule in cases arising under federal law.62 Since
FELA neither provides nor prohibits an award of prejudgment
interest, the court held that it was appropriate to look to local
law to fix the rate of the award.63
On the other hand the FMLA expressly provides for
interest on a plaintiffs award. As noted above, where a federal
claim predominates, federal law governs the compensatory measure
of prejudgment interest.64 The federal rule of prejudgment
interest is to leave the setting of rates at the discretion of
the trial court, and the court did not abuse its discretion here.
IV. CONCLUSION
The trial courts finding that the Municipality violated
Greggs right to protected leave under the FMLA is AFFIRMED. We
REMAND for recalculation of the interest and principal of her
damage award, and for reconsideration of the issue of liquidated
damages consistent with this opinion.
_______________________________
1 Am. Computer Inst., Inc. v. State, 995 P.2d 647, 651
(Alaska 2000).
2 Id.
3 Id. (quoting Graham v. Rockman, 504 P.2d 1351, 1353-54
(Alaska 1972); Voss v. Brooks, 907 P.2d 465, 467 (Alaska 1995)).
4 Wasserman v. Bartholomew, 38 P.3d 1162, 1169 (Alaska
2002).
5 See Thorson v. Gemini, Inc., 205 F.3d 370, 377 (8th
Cir. 2000).
6 29 U.S.C. 2601-2654. Gregg brought her claim under
the federal act and similar provisions of the Alaska Family Leave
Act, AS 39.20.500-.550, and Anchorage Municipal Code 3.30.1515.
We address only the FMLA because the Alaska Act and municipal
code do not provide a remedy. See AS 39.20.540.
7 29 U.S.C. 2612(a)(1) provides:
Subject to section 2613 of this title, an
eligible employee shall be entitled to a
total of 12 workweeks of leave during any 12-
month period for one or more of the
following:
(A) Because of the birth of a son or
daughter of the employee and in order to care
for such son or daughter. (B) Because of the
placement of a son or daughter with the
employee for adoption or foster care. (C) In
order to care for the spouse, or a son,
daughter, or parent, of the employee, if such
spouse, son, daughter, or parent has a
serious health condition. (D) Because of a
serious health condition that makes the
employee unable to perform the functions of
the position of such employee.
8 29 U.S.C. 2615.
9 According to 29 C.F.R. 825.114(a),
serious health condition entitling an
employee to FMLA leave means an illness,
injury . . . or mental condition that
involves:
. . . .
(2) Continuing treatment by a health
care provider. A serious health condition
involving continuing treatment by a health
care provider includes any one or more of the
following:
(i) A period of incapacity (i.e.,
inability to work, attend school or perform
other regular daily activities due to the
serious health condition, treatment therefor,
or recovery therefrom) of more than three
consecutive calendar days, and any subsequent
treatment or period of incapacity relating to
the same condition, that also involves:
(A) Treatment two or more times by
a health care provider . . . .
10 29 C.F.R. 825.114(a)(2)(i).
11 Id.
12 See Thorson, 205 F.3d at 377. The regulation sets out
several alternative definitions of serious health condition, that
trigger benefits, including a chronic serious health condition.
See 29 C.F.R. 825.114. Gregg and Amici Northwest Womens Law
Center and Alaska Network on Domestic Violence & Sexual Assault
argue that the judgment in favor of Gregg could be affirmed on
alternative grounds because she suffered from a chronic serious
health condition. Because we affirm the finding of the trial
court, it is unnecessary for us to determine whether Greggs
condition met the regulatory definition of chronic as well.
13 29 C.F.R. 825.114(a); Frazier v. Iowa Beef Processors,
Inc., 200 F.3d 1190, 1195 (8th Cir. 2000) ([A]n inability to
perform ones job is a requisite element of a FMLA claim. . . .).
14 Mental illness or a high level of emotional stress may
incapacitate an employee for purposes of the FMLA. See, e.g.,
Stubl v. T.A. Sys., Inc., 984 F. Supp. 1075 (E.D. Mich. 1997)
(finding that plaintiff qualified for FMLA protection due to
prolonged grief reaction, as diagnosed by physician). And
multiple adverse health conditions, perhaps minor in isolation,
may collectively incapacitate an employee for purposes of the
Act. Price v. City of Fort Wayne, 117 F.3d 1022, 1024-25 (7th
Cir. 1997).
15 See, e.g., Olsen v. Ohio Edison Co., 979 F. Supp. 1159,
1166 (N.D. Ohio 1997). But cf. Marchisheck v. San Mateo County,
199 F.3d 1068, 1074 (9th Cir. 1999) (finding plaintiffs sons
personal allegations that he could not do anything for four or
five days following a beating sufficient to create a dispute of
fact on whether son was incapacitated).
16 29 U.S.C. 2613(a).
17 The Municipality was aware that Gregg was medically
released back to work when it changed her leave status from sick
to annual, yet the court found that any reasonable observer,
including officers at the department who knew that Gregg was a
victim of domestic violence, would have seen that Gregg was under
significant mental stress. Under the Act, it was therefore the
Municipalitys responsibility to apprise her of her rights to
further leave under the Act, and, if the Municipality suspected
her of malingering, to require a health care provider to certify
her condition. At least one circuit court has held that an
employers failure to require certification meant that there could
be no genuine issue of fact as to whether the plaintiff was
incapacitated. See Thorson, 205 F.3d at 381.
18 See Thorson, 205 F.3d at 377 (Once the fact-finder has
affirmatively found the necessary facts, the conclusion that a
plaintiff had a serious health condition is inescapable as a
matter of law.).
19 But cf. Frazier, 200 F.3d at 1195 (holding that
judgment as matter of law was appropriate against employees FMLA
claim when employee failed to provide any medical evidence he was
incapacitated).
20 See, e.g., Joslin v. Rockwell Intl Corp., 8 F. Supp. 2d
1158 (N.D. Ill. 1998) (doctor who provided retroactive excuse
never examined plaintiff); Bond v. Abbot Labs., 7 F. Supp. 2d
967, 976 (N.D. Ohio 1998).
21 This is not to say that a victim of domestic violence
is automatically entitled to the protection of the FMLA. But any
victim of domestic violence who meets the tests for a serious
health condition, as Gregg did, certainly has a right to
statutory leave.
22 29 C.F.R. 825.114(a)(2)(i)(A) & (B); see, e.g., Rankin
v. Seagate Techs., Inc., 246 F.3d 1145, 1148 (8th Cir. 2001);
Thorson, 205 F.3d at 377; Martyszenko v. Safeway, Inc., 120 F.3d
120, 122-23 (8th Cir. 1997).
23 Thorson, 205 F.3d at 376.
24 29 C.F.R. 825.114(a)(2).
25 Thorson, 205 F.3d at 378.
26 29 C.F.R. 825.114(a)(2)(i).
27 The question of whether this means that Greggs FMLA
leave would have expired since she had already been gone from her
job more than the allowed 12 weeks by April will be discussed
below.
28 t 825.303(b).See Satterfield v. Wal-Mart S
29 res, Inc., 135 F.3d
30 3, 977 (5th Cir. 199
31 Id. at 825.303(b).
32 See Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973,
977 (5th Cir. 1998).
33 Id. (quoting Manuel v. Westlake Polymers Corp., 66 F.3d
758, 764 (5th Cir. 1995)).
34 Am. Computer Inst., 995 P.2d at 651.
35 The Municipality cites Satterfield v. Wal-Mart Stores,
Inc., 135 F.3d 973 (5th Cir. 1998), where the plaintiff never
directly contacted her employer and had a history of unexplained
absences; Gregg was in frequent contact with Woodward, and had an
excellent employment record until her accident.
36 See Spangler v. Fed. Home Loan Bank of Des Moines, 278
F.3d 847, 853 (8th Cir. 2002) (holding that plaintiffs statement
that she was suffering from depression was sufficient to
establish notice under the FMLA); Tate v. Farmland Indus., Inc.,
268 F.3d 989, 997 (10th Cir. 2001) (noting that employer who
placed employee on involuntary sick leave was clearly on notice
that the FMLA might apply).
37 The Municipality cites to the United States Supreme
Court decision in Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81 (2002). It essentially argues that Ragsdale prevents an
employee who receives more than 12 weeks of leave from ever
filing suit under the FMLA. But Ragsdale, which came down after
the trial courts decision, is inapposite because it struck down
29 C.F.R. 825.700(a), which imposed an automatic penalty for
failure to designate prior leave as FMLA-qualifying. 535 U.S. at
90. That regulation, like the Municipalitys argument on this
issue, was not raised or contested in the trial court.
38 Counsel for the Municipality conceded at oral argument
that if Gregg qualified for the Acts protection, the Municipality
would have given her several more weeks of protection.
39 See State v. Northwestern Const., Inc., 741 P.2d 235,
239 (Alaska 1987).
40 To show constructive discharge the employee must prove
that a reasonable person in the employees position would have
felt compelled to resign. Charles v. Interior Hous. Auth., 55
P.3d 57, 60 (Alaska 2002). The superior court found that under
Greggs circumstances on April 11, 1997, it was reasonable for her
to resign to protect her law enforcement certification.
41 For example: Gregg endured her husbands threats,
control, and holding her against her will while in Virginia and
was incapacitated by injuries and mental stress.
42 Alaska R. Civ. P. 52(a).
43 City of Hydaburg v. Hydaburg Coop. Assn, 858 P.2d 1131,
1135 (Alaska 1993).
44 See Wasserman, 38 P.3d at 1166-67.
45 See 29 U.S.C. 2617(a)(1)(A)(ii).
46 City & Borough of Juneau v. Commercial Union Ins. Co.,
598 P.2d 957, 959 (Alaska 1979).
47 See, e.g., Nunez v. Am. Seafoods, 52 P.3d 720, 722
(Alaska 2002) (finding that under the Jones Act, the state courts
must apply the same substantive law as would be applied had the
suit been instituted in admiralty in a federal court) (citations
omitted); Patterson v. State, Dept of Agri., 880 P.2d 1038, 1041-
42 (Alaska 1994) (holding that in suit against employer for
breach of a collective bargaining agreement brought under federal
Labor Management Relations Act, substantive principals of federal
law must be applied).
48 See generally Carpenters Dist. Council of New Orleans &
Vicinity v. Dillard Dept Stores, Inc., 15 F.3d 1275, 1288 (5th
Cir. 1994) ([F]ederal law governs the range of remedies,
including the allowance and rate of prejudgment interest, where a
cause of action . . . arises out of federal statute.).
49 See, e.g., McDonnell v. Miller Oil Co., Inc., 134 F.3d
638, 640 (3rd Cir. 1998) (affirming award of prejudgment interest
on nominal award).
50 See, e.g., Jones v. UNUM Life Ins. Co. of America, 223
F.3d 130, 139 (2d Cir. 2000) (noting that since no federal
statute sets a prejudgment interest rate, the rate is at the
discretion of the trial court); Towerridge, Inc. v. T.A.O., Inc.,
111 F.3d 758, 764 (10th Cir. 1997) (holding that when federal law
governs the question of prejudgment interest the court has
discretion to choose a rate which fairly compensates the
plaintiff); Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59,
63 (3rd Cir. 1986) (In federal question cases, the rate of
prejudgment interest is committed to the discretion of the
district court.).
51 Guides, LTD. v. Yarmouth Group Prop. Mgmt., Inc., 295
F.3d 1065, 1078 (10th Cir. 2002) (reversing trial courts decision
that prejudgment interest should run from date determined by
state statute, and remanding for the court to consider the timing
of the award of prejudgment interest that will serve to fairly
compensate [the plaintiff] for the deprivation of the monetary
value of its loss).
52 28 U.S.C. 1961 provides in relevant part:
(a) Interest shall be allowed on any money
judgment in a civil case recovered in a
district court. . . . Such interest shall be
calculated from the date of the entry of the
judgment, at a rate equal to the weekly
average 1-year constant maturity Treasury
yield, as published by the Board of Governors
of the Federal Reserve System, for the
calendar week preceding. (sic) the date of
the judgment. . . .
(b) Interest shall be computed daily to the
date of payment except as provided in section
2516(b) of this title and section 1304(b) of
title 31, and shall be compounded annually.
53 AS 09.30.070(b) provides in relevant part:
. . . [P]rejudgment interest accrues from the
day process is served on the defendant or the
day the defendant received written
notification that an injury has occurred and
that a claim may be brought against the
defendant for that injury, whichever is
earlier. The written notification must be of
a nature that would lead a prudent person to
believe that a claim will be made against the
person receiving the notification, for
personal injury, death, or damage to
property.
54 See Beaux v. Jacob, 30 P.3d 90, 100 (Alaska 2001).
55 The Municipality further notes that Greggs expert
admitted two mistakes with respect to her calculations of
damages, and asks that Greggs award be reduced by the amount of
error, $2,910.04. We remand this issue to the court, so that
upon proper motion, the final award may be adjusted in accordance
with Alaska Civil Rule 60.
56 Because we hold that the court failed to adequately
support its decision as required by the Act, it is unnecessary
for us to decide whether or not, as Gregg urges, an award of
liquidated damages is necessary to make her whole due to the tax
consequences of the judgment in her favor.
57 29 U.S.C. 2617 provides in relevant part:
(1) Liability
Any employer who violates section 2615 of
this title shall be liable to any eligible
employee affected
(A) for damages equal to
(i) the amount of (I) any wages, salary,
employment benefits, or other compensation
denied or lost to such employee by reason of
the violation; or (II) in a case in which
wages, salary, employment benefits, or other
compensation have not been denied or lost to
the employee, any actual monetary losses
sustained by the employee as a direct result
of the violation, such as the cost of
providing care, up to a sum equal to 12 weeks
of wages or salary for the employee;
(ii) the interest on the amount described in
clause (i) calculated at the prevailing rate;
and
(iii) an additional amount as liquidated
damages equal to the sum of the amount
described in clause (i) and the interest
described in clause (ii), except that if an
employer who has violated section 2615 of
this title proves 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, such court may, in the discretion of
the court, reduce the amount of the liability
to the amount and interest determined under
clauses (i) and (ii), respectively; and
(B) for such equitable relief as may be
appropriate, including employment,
reinstatement, and promotion.
58 Id.
59 Id.
60 476 A.2d 919 (Pa. Super. 1984).
61 Id. at 921.
62 Id. at 922. This is the reason that Greggs citations
to federal precedent are unhelpful: certainly a federal court
sitting in diversity shall apply state law to determine an award
of prejudgment interest. But here a state court decided a
federal question, and federal law applies.
63 Id. at 926.
64 See, e.g., Hardaway Constructors, Inc. v. Browning, 336
S.E.2d 579, 582 (Ga. App. 1985) ([W]here a claim . . . is
governed by federal law, the question whether pre-judgment
interest will be allowed is not controlled by the law of the
forum state.).
