PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES D. DOTSON,
Plaintiff-Appellee,
v. No. 07-1920
PFIZER, INCORPORATED,
Defendant-Appellant.
JAMES D. DOTSON,
Plaintiff-Appellant,
v. No. 07-1979
PFIZER, INCORPORATED,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(5:04-cv-00722-BR)
Argued: September 23, 2008
Decided: March 4, 2009
Before MOTZ and AGEE, Circuit Judges,
and James C. CACHERIS, Senior United States District
Judge for the Eastern District of Virginia, sitting by
designation.
2 DOTSON v. PFIZER
Affirmed in part, reversed in part, vacated in part, and
remanded by published opinion. Senior Judge Cacheris wrote
the opinion, in which Judge Motz and Judge Agee joined.
COUNSEL
ARGUED: Thomas A. Farr, OGLETREE, DEAKINS,
NASH, SMOAK & STEWART, P.C., Raleigh, North Caro-
lina, for Appellant/Cross-Appellee. William Parker Barrett,
WILLIAMS MULLEN, Raleigh, North Carolina, for
Appellee/Cross-Appellant. ON BRIEF: James H. Stewart,
III, Phillip J. Strach, OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C., Raleigh, North Carolina, for
Appellant/Cross-Appellee. Joshua M. Krasner, Jonathan R.
Bumgarner, Brian C. Vick, WILLIAMS MULLEN, Raleigh,
North Carolina, for Appellee/Cross-Appellant.
OPINION
CACHERIS, Senior District Judge:
This case reaches the Court after a full trial on the merits
in the Eastern District of North Carolina. James Dotson
("Dotson") brought suit against his employer, Pfizer, Inc.
("Pfizer"), for violations of the Family and Medical Leave Act
of 1993, 29 U.S.C. § 2601, et seq. (the "FMLA"). The jury
awarded Dotson $1,876.00 on his FMLA interference claim
and $331,429.25 on his retaliation claim. The district court
awarded Dotson $333,305.25 in statutory liquidated damages,
$375,000.00 in attorneys’ fees, and $14,264.88 in costs. Each
party appealed different rulings of the district court. Finding
error with the district court’s decision to deny pre-judgment
interest, we affirm in part, reverse in part, vacate in part, and
remand.
DOTSON v. PFIZER 3
I.
Pfizer terminated Dotson shortly after he and his wife
returned from Russia with their newly-adopted child. Prior to
his termination, Dotson had worked at Pfizer for approxi-
mately fifteen years. He began his career there in 1988 at an
entry-level sales position. In 1991 he was promoted to District
Manager; seven years later he became a Regional Manager
responsible for more than 100 sales representatives.
In 2002, Dotson took on a new position as an Institutional
Healthcare Account Manager in Pfizer’s National Healthcare
Organizations ("NHO") division. There, he dealt with man-
aged care organizations, insurance companies, and large
employers rather than healthcare providers. The parties dis-
pute the facts related to Dotson’s 2002 reassignment. Pfizer
characterizes the new job as a demotion for unsatisfactory
performance. Dotson notes that he did not take a pay cut and
that he received no information indicating performance defi-
ciencies. Approximately one year later, Dotson was reas-
signed again, this time as a Regional Account Manager in the
same institutional healthcare division. In his new position,
Dotson’s immediate supervisor was Chris Kennedy
("Kennedy"), who reported to Regional Manager Patrick
McElerney ("McElerney").
As part of his training as a sales representative, Dotson was
instructed in the proper handling of sample packs of Pfizer
products, called "starters." Sales representatives provide start-
ers to doctors, who give them to their patients in order to get
a patient "started" on a drug for which the doctor will then
write prescriptions. The Food and Drug Administration regu-
lates the use of starters. The Prescription Drug Marketing Act,
21 U.S.C. § 353 et seq. (the "PDMA"), covers their distribu-
tion. The PDMA requires Pfizer to track and account for any
starters given to physicians. Pfizer uses electronic tracking
and "starter activity forms" to fulfill its responsibilities under
the statute.
4 DOTSON v. PFIZER
The PDMA also requires pharmaceutical companies to
report any improper diversions of starters or intentional falsi-
fications of starter forms. Violations can result in sanctions
ranging from fines and the loss of drug distribution rights to
imprisonment for some criminal violations of the statute.
Under its starter policies, Pfizer can discharge employees for
violations; however, at the time Dotson was fired, the com-
pany did not provide specific details of its standards for dis-
charge. The NHO division was not responsible for handling
starters and did not receive starter activity forms or shipments
of starters.
In early 2003, Dotson and his family began working with
an adoption agency to adopt a child from Russia. Dotson cal-
led a Pfizer third-party benefits contractor to inquire about
adoption benefits provided by the company. Later that year,
Dotson and his wife learned that they could adopt a baby girl
but would have to make at least two trips to Russia to com-
plete the adoption. Dotson spoke with a Pfizer human
resources ("HR") representative about taking leave during the
adoption process. Testimony differed as to what the HR repre-
sentative, Amy Burnell ("Burnell"), told Dotson about his
intention to use accrued vacation time and the applicability of
FMLA benefits. Burnell referred Dotson to another HR offi-
cer whom Dotson never contacted. He used accrued vacation
time to take his first trip to Russia. Both parties agree that,
around this time, Dotson’s relationship with his immediate
supervisor, Kennedy, was deteriorating.
Around August 2003, Dotson obtained starters from a
Pfizer sales representative that he intended to give to the
Director of Medicine for the North Carolina Highway Patrol.
Pfizer alleges that Dotson’s request for and subsequent han-
dling of the starter violated company protocol. Later, after
finding out that he was eligible to adopt and learning from the
agency that it was customary to bring gifts for the orphanage,
Dotson decided to obtain a case of starters of the antibiotic
Zithromax to take to the orphanage in Russia. In connection
DOTSON v. PFIZER 5
with this decision, the parties dispute Dotson’s intent, his
familiarity with starter protocol, and whether he knew that
such an endeavor violated company policy. Dotson delivered
the Zithromax to the orphanage on his first trip to Russia.
During a performance review shortly after that first trip,
Dotson’s two immediate supervisors informed him that they
were unhappy with his job performance and expressed con-
cern about his use of the Zithromax. Dotson later contacted
his regional HR director, Ann Hodges ("Hodges"), to discuss
the negative performance review. Hodges also said she was
concerned about Dotson’s handling of starters. After speaking
with Hodges, Dotson left with his wife for a second trip to
Russia. Pfizer then began an evaluation of Dotson’s actions.
As part of that evaluation, McElerney related a summary of
Dotson’s actions to Steve Harper, a Pfizer Vice President,
who believed that the use of the Zithromax could be viewed
as a prohibited quid pro quo with the Russian orphanage. Har-
per determined that Dotson’s conduct warranted discharge,
and an executive group within Pfizer management concurred.
Pfizer terminated Dotson on November 11, 2003 — less than
three weeks after Dotson and his wife returned from Russia
with their adopted child. Dotson claims that the starter issue
was used as a pretext to fire him and that the "policy" against
his use of the starters was unknown to anyone outside the
group that made the decision to terminate him. Pfizer did not
report Dotson’s alleged PDMA violation until 2005.
Dotson filed suit in September 2004. In October 2005,
Pfizer amended its Answer to assert an after-acquired evi-
dence defense against Dotson. The new defense related to
Dotson’s delivery of starters to the North Carolina Highway
Patrol and to his purported misleading of a Pfizer starter con-
trol official, which Pfizer claims led to its late reporting of the
PDMA violation. A jury trial began in May 2006 and lasted
eight days. The jury found that Pfizer interfered with Dotson’s
rights to FMLA leave and that it discharged Dotson in retalia-
tion for his exercise of those rights. It awarded him $1,876 on
6 DOTSON v. PFIZER
his claim of interference and $331,429.25 on his retaliation
claim. Pfizer filed a Motion for Judgment as a Matter of Law
("JMOL") and an alternative Motion for a New Trial in June
2006. After the trial, Dotson filed a Proposed Findings of Fact
and Conclusions of Law Regarding Front Pay and a Motion
for Liquidated Damages, Attorneys’ Fees, and Costs. The
Court denied Pfizer’s JMOL motion and awarded Dotson
$375,000 in liquidated damages, as well as attorneys’ fees and
costs. It denied Dotson’s motion for front pay and pre-
judgment interest. On appeal, Pfizer challenges the court’s
denial of its JMOL motion, the award of liquidated damages,
and the amount of attorneys’ fees awarded. Dotson appeals
the court’s denial of pre-judgment interest and front pay, and
contends that the award of attorneys’ fees was inadequate.
II.
Pfizer argues that the district court erred by denying its
post-trial motion for judgment as a matter of law. We review
the denial of a motion for judgment as a matter of law de
novo, viewing the evidence in the light most favorable to the
prevailing party. Rodriguez v. Smithfield Packing Co., 338
F.3d 348, 354 (4th Cir. 2003) (citing Austin v. Paramount
Parks, Inc., 193 F.3d 715, 727 (4th Cir. 1999)). A trial court
may grant judgment as a matter of law when it "finds that a
reasonable jury would not have a legally sufficient evidentiary
basis to find for" the non-moving party. Fed. R. Civ. P.
50(a)(1); see Brown v. CSX Transp., Inc., 18 F.3d 245, 248
(4th Cir. 1994). A court, however, may not disturb the verdict
where there was sufficient evidence for a reasonable jury to
find in the non-movant’s favor. Lack v. Wal-Mart Stores, Inc.,
240 F.3d 255, 259 (4th Cir. 2001). "A trial court may not
appropriately enter [JMOL] unless it concludes, after consid-
eration of the record as a whole in the light most favorable to
the non-movant, that the evidence presented supports only
one reasonable verdict, in favor of the moving party." Wil-
liams v. Cerberonics, Inc., 871 F.2d 452, 458 (4th Cir. 1989)
(citation omitted).
DOTSON v. PFIZER 7
A.
Pfizer raises three grounds on which it contends the district
court should have granted its motion for judgment as a matter
of law on Dotson’s FMLA retaliation claim. First, it argues
that the FMLA does not provide for the type of intermittent
adoption-related leave that he took. Second, Pfizer claims that
Dotson did not request FMLA leave, and so a rational jury
could not hold it liable for retaliating against him for exercis-
ing his FMLA rights. Third, Pfizer argues that Dotson could
not show retaliatory animus by the persons who decided to
fire him and that there was no evidence that the firing was
pretextual.
1. Intermittent Leave Under the FMLA
The FMLA allows eligible employees 12 weeks of leave
during any 12-month period "[b]ecause of the placement of a
son or daughter with the employee for adoption or foster
care." 29 U.S.C. § 2612(a)(1)(B).1 An employee cannot take
such leave intermittently "unless the employee and the
employer . . . agree otherwise." Id. at § 2612(b)(1).
The parties do not dispute that Dotson took intermittent
pre-adoption leave. Pfizer, though, suggests that Dotson’s pre-
adoption absences were taken intermittently without Pfizer’s
consent and thus fall outside the FMLA. Testimony showed,
however, that Dotson kept the company informed of his need
for adoption-related leave. In its brief, Pfizer acknowledged
that other than for one work-related dinner, it permitted Dot-
son to take all of the leave that he requested. Pfizer claims
that even though it allowed Dotson to take accrued leave
intermittently, it could not have approved intermittent FMLA
leave because he never specifically requested the use of inter-
mittent FMLA leave.
1
The parties stipulated that Dotson was an "eligible employee" under
the FMLA.
8 DOTSON v. PFIZER
Pfizer’s argument fails because the FMLA does not require
Dotson to specifically invoke its protections in order to bene-
fit from it. Regulations promulgated by the Department of
Labor "repeatedly emphasize that it is the employer’s respon-
sibility to determine the applicability of the FMLA and to
consider requested leave as FMLA leave." Price v. City of
Fort Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997) (citing 29
C.F.R. § 825.303(b)). Read in context, subsection (b)(1) to
§ 2612 does not create an additional hurdle for employees
asking for adoption-related leave beyond the requirement that
they make a request or requests for leave that is intermittent.
Instead, the statutory language makes it clear that employers
may, at their option, require that employees take FMLA leave
for certain reasons (birth, adoption or foster care placement
under § 2612(a)(1)(A)-(B)) in one block of up to twelve
weeks rather than intermittently. The requirement that
employer and employee must "agree" on intermittent leave
means that employers can refuse to allow this type of leave
in birth, adoption and foster care placement cases. By con-
trast, employees have an unfettered right to take FMLA leave
because of a serious health condition intermittently when
"medically necessary," with or without employer consent.2 29
U.S.C. § 2612(a)(1)(C)-(D). When the provisions are read
side by side in this manner, the requirement that employer and
employee must "agree" on intermittent leave does not clash
with the generally-accepted position that no "magic words"
are necessary to invoke the protections of the FMLA. See Sar-
nowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d
Cir. 2007); see also Rhoads v. F.D.I.C., 257 F.3d 373, 382-83
(4th Cir. 2001). Pfizer could not point to any evidence show-
ing that it refused to allow Dotson to take adoption-related
leave intermittently.
2
Section 2612(b)(1) also states that, subject to several limitations, an
employee has the right to intermittent leave under § 2612(a)(1)(E), which
allows for time off for certain exigencies related to the active duty military
service of a family member.
DOTSON v. PFIZER 9
Courts that have allowed employers a defense based on the
statute’s requirement that the employer and employee "agree"
on intermittent leave have done so when the employer
expressly refused to agree to intermittent leave. See Maynard
v. Town of Monterey, Tenn., 75 Fed. Appx. 491, 493 (6th Cir.
2003); Beyst v. Pinnacle Airlines, Inc., 2008 WL 2433201 at
*7-8 (E.D. Mich., June 11, 2008) (granting an employer’s
motion for summary judgment on an "intermittent" FMLA
claim where the employer expressly forbade intermittent
leave in its Employee Handbook).3
Here, evidence showed that Pfizer agreed that Dotson could
take his adoption-related leave intermittently. Dotson kept his
supervisors informed about his need for adoption-related
absences, which included two separate trips to Russia. No one
at Pfizer suggested he could not take either trip. Dotson also
contacted Pfizer’s employee benefits contractor with ques-
tions related to his planned adoption. During the trial, he
offered evidence that a Pfizer HR official misinformed him
about available FMLA benefits, after which he did not seek
to designate any of his time off as FMLA-protected. The jury,
then, heard evidence from which it could reasonably infer that
Pfizer either granted Dotson’s requests for intermittent
adoption-related leave or failed to properly inquire concerning
the designation of leave. If Dotson was improperly dissuaded
from pursuing his FMLA options, he could not have come to
an agreement on a more formal intermittent leave schedule.4
3
The plaintiff in Beyst did request, and was allowed, to take time off for
incidents related to his newborn child. 2008 WL 2433201 at *7. The court
refused to treat the employer’s acquiescence to these intermittent leave
requests as an agreement under § 2612(b)(1). Id. While such a finding may
be understandable given the employer’s explicit policy forbidding inter-
mittent leave, we decline to accept language in the case suggesting that the
plaintiff generally bears the burden of expressly invoking the FMLA.
4
Because we find that Dotson has pointed to sufficient evidence show-
ing that Pfizer either agreed to his intermittent adoption-related leave
requests or misled him as to his eligibility for the FMLA, thus negating
the possibility that he could come to a more formal agreement with Pfizer
as to an intermittent leave schedule, we decline to address the district
court’s alternative rationale, based on the FMLA regulations contained at
29 C.F.R. §§ 825.203(b) and 825.112(d), for upholding the jury’s finding.
10 DOTSON v. PFIZER
In either case, Pfizer cannot now claim that it did not "agree"
to allow Dotson to take the intermittent pre-adoption leave he
requested and took.
2. Request for FMLA Leave
Pfizer submits that the district court should have granted
judgment in its favor because no evidence suggested that Dot-
son applied for FMLA leave or exercised his FMLA rights.
The company argues that it could not have intended to retali-
ate against Dotson for using his FMLA rights when he did not
actually exercise those rights.
In addition to providing a substantive (or "prescriptive")
right to unpaid leave in certain situations, the FMLA also pro-
vides proscriptive rights "that protect employees from dis-
crimination or retaliation for exercising their substantive
rights under the FMLA." Yashenko v. Harrah’s NC Casino
Co., 446 F.3d 541, 546 (4th Cir. 2006) (citing Hodgens v.
General Dynamics Corp., 144 F.3d 151, 159-60 (4th Cir.
1998)). Section 2615 of the FMLA makes it "unlawful for any
employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided under this subchap-
ter." 29 U.S.C. § 2615(a)(1). While the FMLA does not spe-
cifically forbid discharging an employee in retaliation for his
use of FMLA leave, 29 C.F.R. § 825.220(c) states that
employers are "prohibited from discriminating against
employees or prospective employees who have used FMLA
leave" and that "employers cannot use the taking of FMLA
leave as a negative factor in employment actions, such as hir-
ing, promotions, or disciplinary actions." Courts have recog-
nized that the FMLA provides a cause of action for
retaliation. Blankenship v. Buchanan Gen. Hosp., 140 F.
Supp. 2d 668, 671-72 (W.D. Va. 2001).
Relying principally on a case from the Eleventh Circuit,
Strickland v. Water Works & Sewer Bd., 239 F.3d 1199 (11th
Cir. 2001), Pfizer argues that for Dotson to establish unlawful
DOTSON v. PFIZER 11
retaliation under the FMLA, he must show that Pfizer had
notice that he was specifically invoking an FMLA right. Sim-
ply asserting that an employer had notice of an employee’s
need for leave for an FMLA-related reason, Pfizer suggests,
cannot open the employer to FMLA retaliation liability.
Case law and federal regulations make it clear, however,
that employees do not need to invoke the FMLA in order to
benefit from its protections. The regulations do not require the
employee to "expressly assert rights under the FMLA or even
mention the FMLA"; instead, the employee "may only state
that leave is needed for an expected birth or adoption, for
example." 29 C.F.R. § 825.302(c). After the employee makes
such a statement, the responsibility falls on the employer to
inquire further about whether the employee is seeking FMLA
leave. Id. "In providing notice, the employee need not use any
magic words." Sarnowski, 510 F.3d at 402.
There is no question that Dotson gave Pfizer adequate
notice of his need for leave during the adoption process. After
he provided this information, the burden shifted to Pfizer to
determine whether he was requesting FMLA leave. Pfizer has
not shown that it made any inquiry into whether his adoption-
related leave should have been classified as protected under
the FMLA. Pfizer’s legal argument would allow it to use its
own failure to determine whether leave should be designated
as FMLA-protected to block liability for retaliation. We
decline to allow an employer to take advantage of its own
lapse in such a way.
Language in Strickland does appear to countenance the
view that, for a retaliation claim to proceed, an employer must
be on notice that an employee specifically invoked the protec-
tion of the FMLA. See 510 F.3d at 1207. In Strickland, the
employee had an argument with his supervisor and then left
work. The employee claimed that he told his supervisor and
another individual responsible for recording work absences
that he was leaving because he was having trouble with his
12 DOTSON v. PFIZER
diabetes. Id. at 1202-03. On these facts, the court found that
the employer did not have notice that the employee was tak-
ing FMLA-protected leave; it did, however, allow the
employee to press a FMLA interference claim. Thus, the Str-
ickland court appeared to embrace a higher burden for making
a retaliation claim under the statute. In our view, any such ele-
vated evidentiary burden contrasts with the applicable FMLA
notice regulations, which do not differentiate between the
notice required to make interference claims and other claims
under the FMLA. To the extent that Strickland stands for a
higher retaliation burden, we decline to follow it.
In contrast to the last-minute, confusing statements made
by the employee in Strickland, however, Dotson gave clear
and advance notice that he was pursuing adoption, an FMLA-
qualifying event. His testimony could lead a reasonable jury
to find that Pfizer was on notice that he was inquiring about
his FMLA options and that Pfizer did not fulfill its duty to
inquire about whether his leave should be classified as
FMLA-protected. Dotson also proffered evidence showing
that he asked about the FMLA and received incorrect or mis-
leading advice from a Pfizer HR official that led him to
believe the law could not benefit him. Thus, even if we
accepted the higher standard for a retaliation claim implied in
Strickland, we would still find that Dotson presented suffi-
cient evidence for a reasonable jury to believe that he was
improperly prevented from invoking his FMLA rights and
fired in retaliation for actions that should have been protected
under the statute. Pfizer cannot use its own oversight to
escape liability for retaliation by claiming it had no warning
that the statute protected Dotson.
3. Retaliatory Animus and Pretext
In order to prevail on a FMLA retaliation claim, Dotson
must have shown evidence linking the adverse employment
action taken against him to a "protected activity," in this case
his adoption-related leave. See Yashenko v. Harrah’s NC
DOTSON v. PFIZER 13
Casino Co., 446 F.3d 541, 551 (4th Cir. 2006) (analyzing
FMLA retaliation claim under Title VII framework). When
we review a finding of retaliation after a full trial on the mer-
its, "our sole focus is ‘discrimination vel non’ — that is,
whether in light of the applicable standard of review the jury’s
finding of unlawful retaliation is supportable." Cline v. Wal-
Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (quoting
Jiminez v. Mary Washington Coll., 57 F.3d 369, 377 (4th Cir.
1995)).
Pfizer’s position at trial was that it fired Dotson because his
delivery of a starter to an orphanage in Russia created the
impression of a quid pro quo, which could have had serious
legal repercussions for Pfizer. This non-discriminatory expla-
nation, if believed by the jury, would have rebutted Dotson’s
prima facie case of retaliatory firing.5 Following the burden-
shifting framework of McDonnell Douglas, which allows a
finding of discrimination when the supposedly non-
discriminatory reason for termination is shown to be pretex-
tual, Dotson then put on evidence to show that Pfizer’s rea-
sons for firing him were a mere pretext for unlawful
discrimination. See Yashenko, 446 F.3d at 551 (citing McDon-
nell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973)).
Pfizer now argues that Dotson failed to prove retaliation at
trial for two reasons: first, he did not show that any member
of the group of Pfizer executives that made the decision to fire
him bore any retaliatory animus toward him for his adoption-
related leave; second, Dotson did not show that the reason
Pfizer gave for firing him was pretextual. We believe, to the
contrary, that under the standard of review for a JMOL deci-
sion, Dotson put on sufficient evidence to allow a jury to find
both retaliatory animus and pretext. Because the evidence in
5
In deciding Pfizer’s motion for summary judgment, the district court
found that Dotson made out a prima facie case of retaliation based on the
timing of his firing under Williams v. Cerberonics, 871 F.2d 452, 457 (4th
Cir. 1989). This finding was not challenged on appeal.
14 DOTSON v. PFIZER
the record before us shows that a jury could rationally find
that Pfizer’s stated reason for firing Dotson was pretextual,
we decline to address Pfizer’s first argument in any detail.6
Dotson put on sufficient evidence of weaknesses and incon-
sistencies in Pfizer’s account of its decision to fire him for a
jury to find pretext. See Richmond v. ONEOK, Inc., 120 F.3d
205, 209 (10th Cir. 1997); Blankenship v. Buchanan Gen.
Hosp., 140 F. Supp. 2d 668, 674 (W.D. Va. 2001). First,
Pfizer’s starter policies were not so clearly drawn that Dot-
son’s handling of starters was obviously wrongful. Dotson put
on evidence showing that some Pfizer personnel were
unaware that NHO division employees could not handle start-
ers. Most importantly, none of the Pfizer employees who
knew in advance about Dotson’s plan to donate the Zithromax
starters — including Kennedy, his direct supervisor, and
McElerney, a member of the executive group that fired Dot-
son — took any action to stop him from donating the Zithro-
max. Neither Kennedy nor McElerney was disciplined for
failing to stop him. A jury could rationally conclude that if
such a donation constituted a violation serious enough to
merit permanent dismissal, Pfizer higher-ups would have
known to stop Dotson from going forward with it or, alterna-
tively, would have suffered some consequence for their inac-
tion.
The evidence also showed that the other two persons
directly involved in obtaining starters for Dotson were not
disciplined. Pfizer argues that the level of misconduct by
these two persons and Dotson’s two supervisors on one hand,
and Dotson on the other, were quite different and should not
be weighted equally under Moore v. City of Charlotte, 754
F.2d 1100, 1107 (4th Cir. 1985). Even if the conduct was not
6
It is worth noting, however, that on cross-examination, McElerney —
a member of the executive group that made the decision to fire Dotson —
expressed his frustration at Dotson for missing a deadline due to an
adoption-related trip to Russia.
DOTSON v. PFIZER 15
precisely analogous, of the five persons involved directly or
tangentially in mishandling starters, one was fired and the
other four were not disciplined at all. That fact, taken in com-
bination with other Pfizer employees’ confusion over the
company’s starter policies and the timing of Dotson’s firing,
could lead a reasonable jury to find that Dotson’s firing under
these circumstances was pretextual.
B.
Pfizer suggests that the district court should have granted
its motion for JMOL on Dotson’s claim for FMLA interfer-
ence because Dotson did not show that he incurred actual
damages as a result of any interference with his rights under
the FMLA. Dotson, however, put on sufficient evidence for
a jury to find that he suffered a cognizable injury because of
Pfizer’s interference.
Dotson incurred actual damages when he was asked to
work while traveling to Russia on leave that should have been
FMLA-protected — work for which Pfizer did not give him
a full day’s credit. Had Pfizer treated the day Dotson spent
working as a work day, rather than as paid vacation, Dotson
would have been paid for an additional day of accrued vaca-
tion when he was terminated. A day’s paid vacation is not val-
ueless; it is a tangible employment benefit providing full pay
for a day when no work is performed. As such, it should be
considered a form of compensation subject to valuation. The
section outlining damages for FMLA interferences explains
that employers are liable for damages in "the amount of any
wages, salary, employment benefits, or other compensation
denied or lost to such employee by reason of the violation."
29 U.S.C. § 2617(a)(1)(A)(i)(I). In our opinion, the "amount"
of "employment benefits" or "other compensation" lost here
is equal to the amount Dotson would have been paid on a day
of paid vacation. While Dotson has raised a number of argu-
ments that would support a finding of damages, the loss of
16 DOTSON v. PFIZER
paid vacation is sufficient to overcome any damages-based
hurdle to an FMLA interference claim.
C.
During the trial, Pfizer introduced evidence, discovered
after the commencement of litigation, of what it claimed were
Dotson’s misrepresentations to Pfizer personnel regarding the
doctor’s signatures he obtained on the forms used to track
starter distribution. During the performance review held in
October 2003, Dotson’s two immediate supervisors instructed
him to contact Pfizer’s Starter Administration Department to
further discuss his distribution of starter drugs in Russia and
North Carolina. Pfizer’s evidence showed that during Dot-
son’s conversation with Jim Batura ("Batura"), a Pfizer
employee Dotson reached on the "compliance hotline," Dot-
son told Batura that he had received a signature from his fam-
ily pediatrician, a Dr. Foster, acknowledging receipt of the
Zithromax that he eventually donated to the Russian orphan-
age. Batura determined that while Dotson’s actions may have
violated Pfizer policy, they did not constitute a reportable
offense under the PDMA.
During the course of litigation, Pfizer realized that Dr. Fos-
ter dated her signature after Dotson’s trip to Russia. It ques-
tioned Dotson about the timing of the signature; Dotson then
claimed that a Dr. Rusher had signed for the Zithromax prior
to Dotson’s trip to Russia, but that he had lost the starter form
and sought a replacement form from Dr. Foster after he
returned. In an affidavit, Dr. Rusher testified that he had no
recollection of discussing Dotson’s plan to donate the Zithro-
max or of signing a starter form. After receiving this new
information, Batura determined that he had a duty to report
several of Dotson’s misrepresentations to the FDA. Pfizer
argued that it would have fired Dotson for these misrepresen-
tations, independent of its stated reason for terminating him
in November 2003. After the jury returned its verdict, which
indirectly indicated that it credited Pfizer’s defense, Dotson
DOTSON v. PFIZER 17
moved for judgment as a matter of law on the after-acquired
evidence defense.7
An after-acquired evidence defense limits an employer’s
liability when the employer discovers evidence of "wrongdo-
ing . . . of such severity that the employee in fact would have
been terminated on those grounds alone if the employer had
known of it at the time of the discharge." McKennon v. Nash-
ville Banner Publ’g Co., 513 U.S. 352, 362-63 (1995). In
evaluating an after-acquired defense, a court "must look to the
employer’s actual employment practices and not merely the
standards articulated in its employment manuals." Sellers v.
Mineta, 358 F.3d 1058, 1064 (8th Cir. 2004) (citing O’Day v.
McDonnell Douglas Helicopter Co., 79 F.3d 756, 759 (9th
Cir. 1996)).
Dotson argues that the district court should have rejected
Pfizer’s after-acquired evidence defense because the evidence
"acquired" was in Pfizer’s possession before his termination
and, in any event, Dotson’s alleged conduct would not nor-
mally have warranted discharge. He emphasizes a note from
Kennedy to McElerney pointing out a discrepancy in the tim-
ing of Dotson’s starter authorizations. Dotson contends that
this note shows that Pfizer was aware of the starter problem,
allegedly uncovered during the discovery process, before it
fired Dotson.
7
The amount of damages awarded by the jury indicated that it cut off
back pay at or around the date on which Pfizer disclosed Dotson’s alleged
misrepresentations to the FDA — not, as normally required when an after-
acquired defense is credited, at the time the new evidence was discovered.
McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 362 (1995). The
jury did not make a separate finding on the defense. The after-acquired
evidence defense became an important issue on appeal because Pfizer
argued that the jury’s acceptance of its defense would provide an alterna-
tive ground for the district court’s decision denying front pay. See Wallace
v. Dunn Constr. Co., 62 F.3d 374, 380 (11th Cir. 1995). We conclude that
the district court did not abuse its discretion in denying front pay, and so
have no need to determine whether the jury "credited" Pfizer’s defense.
18 DOTSON v. PFIZER
What was discovered during Dotson’s deposition, however,
was that he had misled Batura, the starter compliance official,
by telling him that Dr. Foster had signed a starter form prior
to Dotson’s trip to Russia. This conversation, Pfizer claims,
led it to refrain from contacting the FDA to report a problem
with its handling of starters. Dotson’s argument that the evi-
dence is not truly "after-acquired" is specious. His supervi-
sors, who may have known that something was amiss with
Dotson’s starter forms, directed him to call Pfizer’s compli-
ance department. Pfizer put on evidence showing that Dotson
misled a compliance official and that the extent of the pur-
ported deception did not become clear until after litigation
began and Pfizer obtained a new explanation from Dotson,
which it later discovered was also questionable. The evidence
was "after-acquired": Dotson’s misleading of Batura was
revealed only after Dotson filed suit.
The second question, which we decide using the same stan-
dard as the trial judge, is whether a reasonable jury could have
found for Pfizer on its claim that it would have terminated
Dotson for his allegedly misleading conversation with Batura.
Pfizer argues that it would have terminated an employee for
misrepresenting material facts to a company official investi-
gating starter misuse. At trial, Pfizer introduced the testimony
of Dawn Rogers, the Human Resources Vice President for
Pfizer, who stated that Dotson would have been terminated
based on what Pfizer discovered after the commencement of
litigation. We conclude that this testimony would allow a rea-
sonable jury to agree with Pfizer on this element of its after-
acquired evidence defense, and so the district court correctly
denied Dotson’s motion for judgment as a matter of law.
Because we reject Dotson’s assertion that the district court
should have granted his motion for judgment as a matter of
law on Pfizer’s after-acquired evidence defense, it is clear that
the court did not abuse its discretion in allowing Pfizer to
amend its Answer or in denying Dotson’s motion in limine to
exclude the evidence from trial.
DOTSON v. PFIZER 19
III.
Both parties question the district court’s decisions related
to damages and compensation. Pfizer appeals the liquidated
damages award and argues that the court awarded excessive
attorneys’ fees in light of Dotson’s limited recovery. Dotson
claims that he is entitled to pre-judgment interest, front pay,
and additional attorneys’ fees.
We review a district court’s rulings on questions of dam-
ages for abuse of discretion. Doe v. Chao, 511 F.3d 461, 467
(4th Cir. 2007); Hite v. Vermeer Mfg. Co., 446 F.3d 858, 868-
69 (8th Cir. 2006); Duke v. Uniroyal Inc., 928 F.2d 1413,
1424 (4th Cir. 1991). The district court "abuses its discretion
only if its conclusions are based on mistaken legal principles
or clearly erroneous factual findings." People for the Ethical
Treatment of Animals v. Doughney, 263 F.3d 359, 370 (4th
Cir. 2001) (citation omitted).
A.
Dotson appeals the district court’s denial of his request for
front pay. He asked for approximately $8 million in front pay,
including lost future earnings and benefits stretching fifteen
years into the future — until, as Dotson explained, a planned
early retirement at age 58.
Under the FMLA, a wronged employee is entitled to "such
equitable relief as may be appropriate, including employment,
reinstatement, and promotion," along with damages. 29
U.S.C. § 2617(a)(1)(B). The statute does not identify front
pay as an equitable remedy, but we have recognized it as a
proper form of relief that is "an alternative and complement
to reinstatement." Cline v. Wal-Mart Stores, Inc., 144 F.3d
294, 307 (4th Cir. 1998). Determinations of front pay are
made by the trial court sitting in equity. Id. at 307 (citing
Duke v. Uniroyal, 928 F.2d 1413, 1424 (4th Cir. 1991)). A
trial court must "temper" the use of front pay by recognizing
20 DOTSON v. PFIZER
"the potential for windfall" to the plaintiff. Duke, 928 F.2d at
1424. We review the denial of an award of front pay for abuse
of discretion. See Nichols v. Ashland Hosp. Corp., 251 F.3d
496, 504 (4th Cir. 2001).
The district court believed that front pay from the date of
termination until Dotson’s planned retirement was simply too
speculative to award. The court cited Peyton v. Dimario, a
Title VII case which held that front pay for 26 years was
unduly speculative; the Peyton Court also noted that the bal-
ance of authority suggested that courts disfavored lifetime
front pay awards for plaintiffs in their forties. Peyton v.
Dimario, 287 F.3d 1121, 1129-30 (D.C. Cir. 2002). The dis-
trict court stated that it would have been inclined to award
front pay for a more limited duration — such as the approxi-
mately three years between Dotson’s termination and the
point at which he secured a similar though lesser-paying job
at GlaxoSmithKline — had the jury’s award plus liquidated
damages not made Dotson whole by covering his projected
losses over those three years.
Dotson objects to the district court’s characterization of
what he claimed would be uninterrupted future employment
with Pfizer as speculative. He also disputes its determination
that liquidated damages made him whole for his future losses.
Dotson suggests that, since he has not found a position as
remunerative as the one he held with Pfizer, he will not be
"made whole" unless he receives compensation to make up
the difference, starting at the date of his termination and look-
ing more than a decade into the future.
Under these circumstances, we do not believe the district
court abused its discretion in denying Dotson front pay. At the
time the court ruled on Dotson’s request for front pay, Dotson
had secured full-time employment in the pharmaceutical ser-
vices industry, making approximately $65,000 less than the
approximately $232,000 in salary and benefits he made prior
DOTSON v. PFIZER 21
to his termination. Thus, he had secured comparable, if not
precisely equivalent, work at another major drug company.
Dotson goes to great lengths to show that front pay in his
case would not be unduly speculative. The speculative nature
of the inquiry, though, does not stem just from the question
whether Dotson would have stayed with Pfizer through the
end of his career had he not been fired. It also necessarily
involves speculation as to what Dotson’s post-termination
future holds. The court was within its discretion to refuse to
assume that Dotson would never earn a salary comparable to
what he made at Pfizer, given his relative youth and education
level. Considering that (1) the determination of front pay is
inherently speculative; (2) Dotson was of a relatively young
age when terminated; (3) he is highly educated and experi-
enced; and (4) he sought front pay from the date of his termi-
nation until the date he claims he would have retired, fifteen
years in the future, we cannot say that the district court abused
its discretion in denying front pay.
Finally, Dotson finds error in the court’s consideration of
the role played by the liquidated damages in making him
whole. If, as he argues, the remedial intent of the FMLA is to
make wronged employees whole, it is difficult to understand
why a lower court cannot consider the role of liquidated dam-
ages in reaching this overarching goal. Other courts have
allowed such a consideration, although some have cautioned
that the award of liquidated damages should play only a minor
role in determining whether front pay is appropriate. See, e.g.,
Palasota v. Haggar Clothing Co., 499 F.3d 474, 490-91 (5th
Cir. 2007); Downes v. Volkswagen of America., Inc., 41 F.3d
1132, 1141 (7th Cir. 1994). Given the relatively short gap of
two years that the court observed between Dotson’s termina-
tion and his securing of roughly comparable employment, the
court’s consideration of liquidated damages in making Dotson
whole was not an abuse of discretion.
22 DOTSON v. PFIZER
B.
Dotson also claims that the district court improperly
refused to award pre-judgment interest. Under the FMLA, an
employer "shall be liable" for the pre-judgment interest on the
amount of "any wages, salary, employment benefits, or other
compensation denied or lost to [an employee] by reason of the
[FMLA] violation." 29 U.S.C. § 2617(a)(1)(A)(i)-(ii); see also
Hite v. Vermeer Mfg. Co., 446 F.3d 858, 869 (8th Cir. 2006)
(interpreting § 2617 to require pre-judgment interest).8 The
district court explained that it did not award pre-judgment
interest because Dotson did not request it in the initial post-
trial proceedings. Dotson did, however, request pre-judgment
interest in his complaint and in a pre-trial brief. He raised the
issue again in a Rule 59 motion to amend the district court’s
judgment on damages.9 In its Memorandum Opinion deciding
8
There is a discrepancy between the mandatory language of § 2617 and
the permissive formulation of one regulation addressing FMLA remedies,
which states that "the employee may be entitled to interest" on FMLA
damages. 29 C.F.R. § 825.400(c). Here, as always, the plain meaning of
the unambiguous statute controls. K Mart Corp. v. Cartier, Inc., 486 U.S.
281, 291-92 (1988) (citing Chevron U.S.A., Inc. v. Natural Resources Def.
Council, Inc., 467 U.S. 837, 842-43 (1984)).
9
Pre-judgment interest is considered to be part of the merits of a court’s
decision, and so a motion requesting such interest is properly classified as
a Rule 59(e) motion to alter or amend a judgment. Osterneck v. Ernst &
Whinney, 489 U.S. 169, 176-77 & n.3 (1989); see also Kosnoski v. How-
ley, 33 F.3d 376, 378 (4th Cir. 1994). We have previously required, in an
unpublished opinion, that to avoid waiving pre-judgment interest, a liti-
gant must raise the issue within the time constraints imposed by Rule
59(e), which allows no more than 10 days to file a motion to alter or
amend a judgment. Hanson v. Cerrone & Assoc., Inc., 1993 WL 98777,
at *3 (4th Cir. Apr. 15, 1993); but see Macsenti v. Becker, 237 F.3d 1223,
1245 (10th Cir. 2001) (finding no authority requiring a litigant to raise the
issue of entitlement to pre-judgment interest via a Rule 59(e) motion to
preserve an appeal when the issue was raised in the complaint). Here, the
district court awarded judgment for damages and costs in two stages: first,
it entered the jury award for retaliation and interference; second, the court
invited briefing on other damages and costs to which Dotson might be
DOTSON v. PFIZER 23
the parties’ initial post-trial motions, the district court stated,
in a footnote, that while pre-judgment interest "may also be
awarded," Dotson had not asked for it in his initial post-trial
brief. Mem. Op. of Aug. 29, 2007, at 3 n.2. For that reason,
the district court denied Dotson’s subsequent request for pre-
judgment interest, made under Rule 59(e), as untimely. Mem.
Op. of Nov. 19, 2007, at 3-5. In support of this finding, the
court reasoned that pre-judgment interest constituted "addi-
tional" relief that would have required briefing within the
schedule that it set for post-trial motions. Id. at 5.
We reverse the district court’s decision because pre-
judgment interest on FMLA damages is mandatory rather than
discretionary. Pre-judgment interest also does not constitute
the kind of "additional" relief that requires briefing — unlike
other FMLA remedies like front pay and liquidated damages,
which the district court has the discretion to reduce or deny
outright. Pre-judgment interest automatically becomes part of
the damages award under the plain terms of the statute. 29
U.S.C. § 2617(a)(1)(A)(i)-(ii). Given the statutory command
to include pre-judgment interest as part of FMLA damages,
the district court should have awarded pre-judgment interest
regardless of whether Dotson reiterated his pre-trial requests
for it in the post-trial motion. In this case — where pre-
judgment interest was requested in several documents filed
before trial — Dotson was entitled to the interest, which
should have been awarded at the time the district court
awarded him liquidated damages and other costs and fees.10
entitled. The court then entered a second order awarding liquidated dam-
ages, attorneys’ fees, and costs, and denying front pay. Dotson filed his
Rule 59(e) motion for pre-judgment interest within 10 days of the entry
of this second order. He did not waive pre-judgment interest, and so the
district court’s decision is ripe for review.
10
The district court noted that pre-judgment interest is not warranted
automatically, at least insofar as the rate of interest is not defined by stat-
ute and different courts use different interest calculations. The question
whether Dotson was entitled to pre-judgment interest, though, is separate
from the question of what rate applies. The court could have found that
Dotson was at least entitled to this relief without briefing — even if deter-
mining the appropriate interest rate would require additional briefing.
24 DOTSON v. PFIZER
Pfizer’s arguments in opposition lack merit. The case it
cites to support its assertion that pre-judgment interest is dis-
cretionary addresses a different statute — one that does not
provide for pre-judgment interest. See Eden v. Amoco Oil Co.,
741 F. Supp. 1192, 1196 (D. Md. 1990). We also reject
Pfizer’s contention that Dotson was made whole without pre-
judgment interest. Regardless of whether a court believes that
a plaintiff is made whole by a jury award alone, the FMLA
requires the award of pre-judgment interest. In effect, Con-
gress has stipulated as to what will make a wronged employee
whole under the FMLA, and we are bound by that legislative
decision.
C.
The FMLA entitles a wronged employee to an additional
award of liquidated damages equal to the sum of the amount
awarded for damages and the interest on that amount. 29
U.S.C. § 2617(a)(1)(A)(iii). Normally, liquidated damages are
awarded automatically under the statute. If, however, the
employer "proves to the satisfaction of the court" that the vio-
lation of § 2615 "was in good faith and that the employer had
reasonable grounds for believing that the act or omission was
not a violation," the court, in its discretion, may choose not
to award liquidated damages. Id. The employer has a "plain
and substantial burden" to persuade the court that its failure
was in good faith and that it would be unfair to impose liqui-
dated damages. Mayhew v. Wells, 125 F.3d 216, 220 (4th Cir.
1997) (quotation omitted) (interpreting liquidated damages
provision of the Fair Labor Standards Act). The employer
must show objective good faith. See id. (citing Clifton D.
Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969)).
Pfizer’s decision-makers, the company contends, did not
know that Dotson had inquired about FMLA leave, and so the
district court punished Pfizer for not knowing the statutory
implications of Dotson’s adoption-related leave. This argu-
ment ignores Pfizer’s statutory burden of seeking out further
DOTSON v. PFIZER 25
information and complying with the FMLA when an
employee indicates that he or she is seeking leave for a pro-
tected reason. See 29 C.F.R. § 825.303(b). Pfizer had affirma-
tive obligations it did not meet. The district court was well
within its discretion to find that Pfizer did not make a show-
ing of good faith.
Our decision that Dotson is entitled to pre-judgment inter-
est, however, requires that we vacate the award of liquidated
damages and return it to the district court for recalculation
after the addition of pre-judgment interest. See supra at sub-
section III.B; 29 U.S.C. § 2617(a)(1)(A)(ii)-(iii) (prescribing
liquidated damages equal to the sum of damages and pre-
judgment interest).
D.
Both parties contest the attorneys’ fees awarded to Dot-
son’s counsel. Pfizer claims that the amount of attorneys’ fees
awarded — $375,000 — was excessive considering that Dot-
son recovered $666,610.50 on his claims.
The FMLA directs the award of reasonable attorneys’ fees
to a prevailing plaintiff. 29 U.S.C. § 2617(a)(3); see McDon-
nell v. Miller Oil Co., 134 F.3d 638, 640 (4th Cir. 1998). The
amount of attorneys’ fees awarded is at the trial court’s dis-
cretion. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1359
(4th Cir. 1995) (citing Rum Creek Coal Sales v. Caperton, 31
F.3d 169, 174 (4th Cir. 1994)). A reviewing court should
reverse discretionary fee awards only "if under all the facts
and circumstances [the award] is clearly wrong." Id. (citation
and quotation omitted) (alteration in original). In calculating
a reasonable lodestar fee, the district court looks to "the nature
and extent of the services supplied, the customary hourly rate
of compensation, the number of hours expended, the skill
required, the complexity of the case, and the success achieved
by the plaintiff." Id. (citing Rum Creek Coal Sales, 31 F.3d at
175). The reasonable number of hours and reasonable rate is
26 DOTSON v. PFIZER
determined by reference to the twelve factor test set forth in
Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19
(5th Cir. 1974). See, e.g., McDonnell, 134 F.3d at 640.
Pfizer claims that, because it prevailed on its after-acquired
evidence defense, Dotson won only a limited victory. Thus,
the Court should reduce the attorneys’ fees awarded, because
"the most critical factor is the degree of success obtained."
Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). "Even when
an award of attorneys’ fees is mandatory, the district court
may decrease the amount of fees that might otherwise be
awarded in order to account for the plaintiff’s limited suc-
cess." McDonnell, 134 F.3d at 641. Here, the district court
reduced the amount claimed by Dotson’s attorneys from
$550,000 to $375,000. Even if Pfizer prevailed, or partially
prevailed, on the after-acquired evidence defense it raised, we
do not find the district court’s attorneys’ fee award "clearly
wrong." Martin, 48 F.3d at 1359. The court properly took into
account Dotson’s limited recovery and reduced the fee award
accordingly.
The district court limited Dotson’s attorneys’ fees because
he did not obtain all the relief requested in his complaint. Dot-
son claims he is entitled to higher attorneys’ fees, since the
district court wrongfully denied Dotson the full relief he
requested. Because we hold that the district court did not
abuse its discretion in denying front pay, it is clear that the
court also did not err by limiting Dotson’s fees based on his
failure to recover front pay.
In its post-trial ruling on Dotson’s motion to amend the
judgment, the district court denied Dotson’s request for addi-
tional attorneys’ fees without prejudice, allowing him to
renew his request "upon conclusion of the appellate process
in his favor." Mem. Op. of November 19, 2007, at 7. Our
decision that Dotson should have been awarded pre-judgment
interest — which will require a re-calculation of liquidated
damages — means that Dotson will make a larger overall
DOTSON v. PFIZER 27
recovery on his legal claims. In accordance with the district
court’s earlier decision, we vacate the attorneys’ fee award
and return it to that court for reconsideration based on Dot-
son’s additional recovery.
IV.
To recapitulate, we hold that Dotson is entitled to pre-
judgment interest under 29 U.S.C. § 2617(a)(1)(A)(i)-(ii). For
that reason, the attorneys’ fees and liquidated damages must
be recalculated after pre-judgment interest is added to Dot-
son’s award. We affirm the district court’s judgment in all
other respects.
AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED