Sanders v. City of Newport

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DIANE L. SANDERS, 
Plaintiff-Appellant, No. 08-35996
v.  D.C. No.
CITY OF NEWPORT, 6:07-CV-00776-TC
Defendant-Appellee.


DIANE L. SANDERS, 
Plaintiff-Appellee, No. 09-35119
v.  D.C. No.
CITY OF NEWPORT, 6:07-cv-00776-TC
Defendant-Appellant.


DIANE L. SANDERS,  No. 09-35196
Plaintiff-Appellee,
v.  D.C. No.
6:07-cv-00776-TC
CITY OF NEWPORT,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding

Argued and Submitted
March 1, 2010—Portland, Oregon

Filed March 17, 2011
3659
3660 SANDERS v. CITY OF NEWPORT
Before: Richard A. Paez, Richard C. Tallman and
Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Paez
3662 SANDERS v. CITY OF NEWPORT

COUNSEL

Thomas Doyle, Bennett Hartman Morris & Kaplan, LLP,
Portland, Oregon, for the plaintiff-appellant.
 SANDERS v. CITY OF NEWPORT 3663
Karen O’Kasey, Sean Bannon, Matthew Kalmanson, Marjorie
Speirs, Hoffman, Hart & Wagner, LLP, Portland, Oregon, for
the defendant-appellee.

OPINION

PAEZ, Circuit Judge:

Diane Sanders, a former employee of the City of Newport
(“the City”), sued the City when it refused to reinstate her
after she took an approved medical leave. In her complaint,
Sanders alleged that the City violated the Family and Medical
Leave Act of 1993 (“FMLA”), the Oregon Family Leave Act
(“OFLA”), and other state and federal laws when it failed to
reinstate her after she took FMLA/OFLA leave, and ulti-
mately fired her.1 At trial, the City argued that it could not
provide a safe workplace for Sanders because she suffered
from multiple chemical sensitivity. In a bifurcated trial, a jury
decided Sanders’s FMLA and other damages claims, while
the court decided Sanders’s claims for equitable relief under
OFLA. The jury returned its verdict in favor of the City, find-
ing that the City did not violate Sanders’s FMLA rights. On
the basis of the same evidence presented to the jury, the court
concluded that the City violated Sanders’s OFLA rights and
awarded monetary relief. Both Sanders and the City timely
appealed. In her appeal, Sanders argues that the court improp-
erly instructed the jury on the elements of her FMLA interfer-
ence claim. Sanders further argues that the instructional error
was not harmless and therefore she is entitled to a new trial.
In its appeal, the City argues that the court was bound by the
jury’s implicit factual findings that it made in rendering a ver-
dict for the City on Sanders’s FMLA claim. The City thus
1
Sanders was granted medical leave under both the FMLA and the
OFLA, but for clarity, we refer to it throughout the opinion as FMLA
leave.
3664 SANDERS v. CITY OF NEWPORT
argues that it is entitled to judgment on Sanders’s OFLA
claim.

For the reasons explained below, we agree with Sanders
that the trial court improperly instructed the jury on the ele-
ments of her FMLA interference claim and that the error was
not harmless. We therefore reverse the judgment as to this
claim and remand for a new trial. Because the jury was
improperly instructed, we vacate the judgment on Sanders’s
OFLA claim and remand it for further consideration after the
retrial of her FMLA claim.

I. Factual and Procedural Background

The City employed Diane Sanders as a utility billing clerk
for approximately ten years. Sanders compiled water and util-
ity bills, issued monthly bills, and provided customer service.
After the City moved Sanders’s office to a new location and
started to use lower-grade billing paper, Sanders began suffer-
ing health problems. Sanders consulted with a specialist, Dr.
Morgan, who diagnosed her as suffering from multiple chemi-
cal sensitivity. In Dr. Morgan’s opinion, the condition was
triggered by handling low-grade paper at work and poor air
quality in Sanders’s work area. The City, in response to Sand-
ers’s complaints, retained an expert to test the air quality in
Sanders’s work area. The expert determined that the air qual-
ity met governing health and safety standards. The Oregon
Occupational Safety and Health Division of the Department
of Consumer and Business Services rendered a similar report
after testing air samples in the copy room.

On the basis of Dr. Morgan’s advice, Sanders requested
and received one month of FMLA leave, starting on January
19, 2006, to see if her health would improve if she were not
exposed to the chemicals in her office. Sanders’s leave was
later extended because she had an unrelated medical condi-
tion. After the City sent a letter to Sanders, stating that she
needed “to present a fitness-for-duty certificate from [her]
 SANDERS v. CITY OF NEWPORT 3665
physician prior to being restored to employment,” Dr. Morgan
faxed a letter to the City stating that Sanders had recovered
from her other medical condition and that he believed she
could return to work, so long as she avoided use of the
problem-causing low-grade paper. The City had stopped using
the low-grade paper while Sanders was on FMLA leave.
Sanders also submitted a fitness-for-work certificate from the
surgeon who treated her unrelated medical condition. On May
5, 2006, the City informed Sanders that she would not be per-
mitted to return to work because the City could not guarantee
that her workplace would be safe for her due to her chemical
sensitivity. The City and Sanders continued to correspond
throughout May and June, during which time Sanders consis-
tently requested reinstatement and assured the City that she
was ready to return to work.

On January 8, 2007, the City sent Sanders a letter advising
her that her employment would be terminated that same day
“due to the restrictions placed on [her] by [her] physician, Dr.
Morgan, which the City is unable to accommodate.” Sanders
filed an administrative appeal of the decision to terminate her
employment. In response to her appeal, the City informed her:
“The decision to terminate your employment was made for
the reason that the City could not provide a safe workplace for
you, given your sensitivity to chemicals and the lack of
knowledge as to the chemicals or concentrations that may
cause a reaction.”

Sanders filed her district court complaint in July 2007,
alleging violations of the Americans with Disabilities Act
(“ADA”), FMLA, OFLA, and other federal and state laws.
Following discovery, the City moved for summary judgment
on all claims. The district court granted the City’s motion on
Sanders’s workers’ compensation claim, but denied summary
judgment on all other claims. At trial, the court impaneled a
jury to hear Sanders’s FMLA and other damages claims.
Because the remedial relief that Sanders sought under OFLA
and a state law retaliation claim was equitable in nature, these
3666 SANDERS v. CITY OF NEWPORT
claims were severed and deferred by the court until the con-
clusion of the jury trial.

Although the parties discussed the nature of Sanders’s
FMLA claim with the court at a pretrial conference, it was not
entirely clear at the outset of the trial whether Sanders was
pursuing a retaliation or interference claim. As the trial prog-
ressed, the court, with clarification from counsel, determined
that Sanders was pursuing an interference claim. With this
clarification, the judge stated that he would modify the pro-
posed jury instructions and verdict form to instruct the jury to
consider whether “plaintiff prove[d] by a preponderance of
the evidence that defendant failed to reinstate her . . . . [a]fter
she took family medical leave[.]”

The next day, after discussion with counsel, the court deter-
mined that the FMLA instruction needed further revision. The
City argued that the court’s proposed instruction did not
require Sanders to prove that the City’s decision to terminate
her was unlawful. In the City’s view, an employer should only
be liable if it acted wrongfully in terminating its employee,
and the employee should bear the burden of proving as much.
In response, the court proposed to modify the instruction and
verdict form to instruct the jury to consider whether “plaintiff
prove[d] by a preponderance of the evidence that the defen-
dant, without reasonable cause, failed to reinstate her after
she took leave[.]” (Emphasis added). Sanders objected, argu-
ing that the proposed revision was a misstatement of the law.
The following colloquy between the court and counsel
ensued:

The Court: I suppose it boils down to the issue of
whether [the City’s] perception of [Sanders] as being
unable to return to the workplace without getting
sick, whether that’s reasonable cause or not.

[Sanders]: I think that . . . where the employer says
we can’t . . . we’re not bringing you back because of
 SANDERS v. CITY OF NEWPORT 3667
this doctor’s note that restricts you in some way that
we can’t do, that’s an affirmative defense that they
can raise, certainly. They haven’t at this point. They
have to show that they’re excused from the obliga-
tions created by the statute. And that excuse —

The Court: What do you mean they haven’t raised
that as a defense? I thought they had.

[Sanders]: I have not seen that in the pleadings.
...

The Court: Well, haven’t they, in their testimony,
stated that the reason they didn’t reinstate her and
the reason they terminated her was because they
thought that she would get sick if she returned to that
work environment?

[Sanders]: That has been the testimony, because it’s
been overlapping with a number of other different
issues, absolutely, there is no question about that.
But, once again, in terms of the instructions, I don’t
think that — and in terms of what’s properly before
the jury . . . that hasn’t been properly brought as an
affirmative defense in this case.

[The City]: First of all, Your Honor, there are no
affirmative defenses — as a matter of statute to date,
there are no affirmative defenses required of the
employer to plead in a Family Medical Leave Act
claim, like there are in the Americans with Disabili-
ties Act claim. . . . [T]here are only two cases in the
Ninth Circuit interpreting FMLA, Bachelder and
Amway. Neither of them say[s] that there is some
affirmative defense that the employer can raise. Both
of them say that there has to be some, you know, dis-
criminatory or bad motive on the part of the
employer. They both confuse retaliation with inter-
3668 SANDERS v. CITY OF NEWPORT
ference. And in the Amway case, the Ninth Circuit
acknowledges that this confusion occurred. And so
— and as far as the facts of this case, yes, there has
been testimony [that Sanders] took leave. She was
qualified to take leave. The reason I didn’t bring her
back is because I couldn’t guarantee a safe work-
place. And I think the reasonable cause language that
the court is proposing is adequate and appropriate.

The Court: Okay. I think that’s what I’ll do. That
the defendant, without reasonable cause, failed to
reinstate her after she took leave.2

All but two state claims (including the OFLA claim) were
submitted to the jury, which returned a verdict for the City on
all claims. Sanders timely appeals the judgment entered on the
jury’s verdict, arguing that the district court’s jury instructions
misstated the law.

On the basis of the jury’s implicit factual findings, the court
found for the City on Sanders’s state law retaliation claim, but
found that Sanders proved by a preponderance of the evidence
that the City refused, without reasonable cause, to reinstate
Sanders after she took family medical leave pursuant to
OFLA. As to that claim, the court awarded Sanders $64,040
in back pay, front pay, and other related losses, and
2
The court’s final jury instruction read:
Plaintiff also claims that she was not reinstated to her job after
she took family medical leave. In order to prove that claim,
plaintiff must prove both of the following: (1) that she requested
family medical leave; and (2) that she was denied reinstatement
or discharged from employment without reasonable cause after
she took family medical leave.
The related question on the jury verdict form asked:
3. Did plaintiff prove by a preponderance of the evidence that the
defendant, without reasonable cause, failed to reinstate her after
she took family medical leave?
 SANDERS v. CITY OF NEWPORT 3669
$60,488.65 in attorney fees and costs and entered judgment
accordingly. The City timely appealed, arguing that the trial
court was required to reach the same determination on Sand-
ers’s OFLA claim as the jury reached on the FMLA claim.

II. Discussion

A. The FMLA

Enacted in 1993, the FMLA “was the culmination of sev-
eral years of negotiations in Congress to achieve a balance
that reflected the needs of both employees and their employ-
ers.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1119
(9th Cir. 2001). The declared purpose of the FMLA is:

(1) to balance the demands of the workplace with the
needs of families, to promote the stability and eco-
nomic security of families, and to promote national
interests in preserving family integrity;

(2) to entitle employees to take reasonable leave for
medical reasons, for the birth or adoption of a child,
and for the care of a child, spouse, or parent who has
a serious health condition;

(3) to accomplish the purposes described in para-
graphs (1) and (2) in a manner that accommodates
the legitimate interests of employers.

29 U.S.C. § 2601(b). To that end, “[t]he FMLA creates two
interrelated, substantive employee rights: first, the employee
has a right to use a certain amount of leave for protected rea-
sons, and second, the employee has a right to return to his or
her job or an equivalent job after using protected leave.”
Bachelder, 259 F.3d at 1122 (citing 29 U.S.C. §§ 2612(a),
2614(a)). As described in greater detail in Bachelder, 29
U.S.C. § 2615(a) sets forth two very different ways to protect
these substantive rights. Id. at 1124; see also Xin Liu v.
3670 SANDERS v. CITY OF NEWPORT
Amway Corp., 347 F.3d 1125, 1133 & n.7 (9th Cir. 2003);
Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955,
960 (10th Cir. 2002) (“Courts have recognized two theories
for recovery on FMLA claims under § 2615, the retaliation or
discrimination theory and the entitlement or interference theo-
ry.”); Strickland v. Water Works & Sewer Bd. of Birmingham,
239 F.3d 1199, 1206 n.9 (11th Cir. 2001) (“While the FMLA
does not clearly delineate these two claims with the labels
‘interference’ and ‘retaliation,’ those are the labels courts
have used in describing an employee’s claims under the
Act.”).

[1] Under § 2615(a)(2), it is “unlawful for any employer to
discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this
subchapter.” 29 U.S.C. § 2615(a)(2). An allegation of a viola-
tion of this section is known as a “discrimination” or “retalia-
tion” claim. See Bachelder, 259 F.3d at 1124; see also, e.g.,
Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006);
Smith, 298 F.3d at 960; Strickland, 239 F.3d at 1207.
Although undecided in this circuit, see Bachelder, 259 F.3d
at 1125 n.11, other circuits that have considered how a plain-
tiff can establish liability in an FMLA discrimination or retali-
ation claim have adopted some version of the McDonnell
Douglas v. Green burden shifting framework.3 411 U.S. 792
3
Under the McDonnell Douglas burden shifting framework, the plaintiff
first must establish a “prima facie case of discrimination or retaliation.”
Metoyer v. Chassman, 504 F.3d 919, 931 n.6 (9th Cir. 2007). If the plain-
tiff establishes a prima facie case, the burden then shifts to the defendant
to articulate “a legitimate, nondiscriminatory reason for the adverse
employment action.” Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d
840, 849 (9th Cir. 2004). If the employer articulates a legitimate reason
for its action, the plaintiff must then show that the reason given is pretex-
tual. See Pottenger v. Potlatch Corp., 329 F.3d 740, 746 (9th Cir. 2003).
“[A] plaintiff can prove pretext either (1) indirectly, by showing that the
employer’s proffered explanation is unworthy of credence because it is
internally inconsistent or otherwise not believable, or (2) directly, by
showing that unlawful discrimination more likely motivated the employ-
er.” Lyons v. England, 307 F.3d 1092, 1113 (9th Cir. 2002) (internal quo-
tation marks omitted).
 SANDERS v. CITY OF NEWPORT 3671
(1973); see, e.g. Edgar, 443 F.3d at 508; Doebele v.
Sprint/United Mgmt. Co., 342 F.3d 1117, 1135 (10th Cir.
2003); Strickland, 239 F.3d at 1207; Hodgens v. Gen. Dynam-
ics Corp., 144 F.3d 151, 160 (1st Cir. 1998). As noted earlier,
at trial Sanders did not pursue a discrimination or retaliation
claim under the FMLA, but we note this burden shifting
scheme as a point of reference for the approach we have
adopted for evaluating an interference claim.

[2] Under § 2615(a)(1), it is “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt
to exercise” the substantive rights guaranteed by FMLA. 29
U.S.C. § 2615(a)(1). When a party alleges a violation of
§ 2615(a)(1), it is known as an “interference” or “entitlement”
claim. Bachelder, 259 F.3d at 1124; see also, e.g., Edgar, 443
F.3d at 507; Smith, 298 F.3d at 960; Strickland, 239 F.3d at
1207. In this circuit, we have declined to apply the type of
burden shifting framework recognized in McDonnell Douglas
to FMLA “interference” claims; rather, “[an employee] can
prove this claim, as one might any ordinary statutory claim,
by using either direct or circumstantial evidence, or both.”
Bachelder, 259 F.3d at 1125; see Xin Liu, 347 F.3d at 1136
(“While other circuits have applied the McDonnell Douglas
framework to FMLA termination [interference] cases, this
Circuit . . . explicitly declined to apply this framework [to
interference claims].”).

“The right to reinstatement guaranteed by 29 U.S.C.
§ 2614(a)(1) is the linchpin of the entitlement theory because
‘the FMLA does not provide leave for leave’s sake, but
instead provides leave with an expectation that an employee
will return to work after the leave ends.’ ” Edgar, 443 F.3d at
507 (alteration omitted) (quoting Throneberry v. McGehee
Desha Cnty. Hosp., 403 F.3d 972, 978 (8th Cir. 2005)). Thus,
evidence that an employer failed to reinstate an employee
who was out on FMLA leave to her original (or an equivalent)
position establishes a prima facie denial of the employee’s
3672 SANDERS v. CITY OF NEWPORT
FMLA rights. See 29 C.F.R. § 825.220(b) (2008)4 (explaining
that any violation of the FMLA constitutes interference with
rights under the FMLA); cf. Xin Liu, 347 F.3d at 1135 (“A
violation of the FMLA simply requires that the employer
deny the employee’s entitlement to FMLA leave.” (citing 29
C.F.R. § 825.220(a)(1), (b)). The Sixth and Seventh Circuits
have ably summarized the elements of an employee’s prima
facie case where the employer fails to reinstate the employee:
“the employee must establish that: (1) he was eligible for the
FMLA’s protections, (2) his employer was covered by the
FMLA, (3) he was entitled to leave under the FMLA, (4) he
provided sufficient notice of his intent to take leave, and (5)
his employer denied him FMLA benefits to which he was
entitled.” Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir.
2006) (citing Hoge v. Honda Am. Mfg., Inc., 384 F.3d 238,
244 (6th Cir. 2004)). We agree with this approach. In interfer-
ence claims, the employer’s intent is irrelevant to a determina-
tion of liability. See Xin Liu, 347 F.3d at 1135; Bachelder,
259 F.3d at 1130; Edgar, 443 F.3d at 507 (“The employer’s
intent is not a relevant part of the entitlement inquiry under
§ 2615.”); see also Colburn v. Parker Hannifin/Nichols Port-
land Div., 429 F.3d 325, 332 (1st Cir. 2005) (“[E]mployer
motive plays no role in a claim for substantive denial of bene-
fits.”); Smith, 298 F.3d at 960 (“If an employer interferes with
the FMLA-created right to medical leave or to reinstatement
following the leave, a deprivation of this right is a violation
regardless of the employer’s intent.”); see also Strickland, 239
F.3d at 1208; Hodgens, 144 F.3d at 159.

Although the FMLA created a statutory right to reinstate-
ment after taking FMLA leave, this right is not without limits.
4
The Department of Labor amended the FMLA implementing regula-
tions, effective January 16, 2009. Although the regulations in effect at the
time of the events in this case have since been amended, the regulations
discussed in this opinion are virtually unchanged in substance. Compare
29 C.F.R. §§ 825.214, 825.216, 825.312 (2008) with 29 C.F.R. § 825.216
(2009). Because the events in this case took place prior to the effective
date of the amendments, all citations are to the 2008 FMLA regulations.
 SANDERS v. CITY OF NEWPORT 3673
The FMLA is clear on this point: “Nothing in this section
shall be construed to entitle any restored employee to . . . any
right, benefit, or position of employment other than any right,
benefit or position to which the employee would have been
entitled had the employee not taken the leave.” 29 U.S.C.
§ 2614(a)(3)(B). The Department of Labor (“DOL”) has inter-
preted this part of the statute in various regulations that set
forth the limitations on an employee’s right to reinstatement.5
See, e.g., 29 C.F.R. §§ 825.214(b), 825.216(c), (d), 825.312.
All the circuits that have considered the issue have relied on
DOL regulations to hold that the FMLA provides an
employee with only a limited right to reinstatement. See, e.g.,
Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 547 (4th
Cir. 2006); Edgar, 443 F.3d at 507-08; Throneberry, 403 F.3d
at 977; Smith, 298 F.3d at 960-61; Strickland, 239 F.3d at
1208; Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1018 (7th
Cir. 2000). The circuits disagree, however, about which party
must carry the burden of proof when an employer defends
against a denial of reinstatement by asserting one of the limi-
tations set forth in DOL regulations.

Here, Sanders argues that the court’s FMLA jury instruc-
tion improperly placed the burden on her to prove that she
was denied reinstatement without cause and that by adopting
a reasonable cause requirement, the court incorrectly stated
the elements of her FMLA claim. We address these issues
below and conclude that under Bachelder and Xin Liu, the
FMLA and DOL implementing regulations, the court’s
instruction was erroneous. We further conclude that the error
was not harmless.
5
Congress authorized DOL to issue implementing regulations for the
FMLA. See 29 U.S.C. § 2654. “These regulations are entitled to deference
under Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843-44 [ ] (1984).” Xin Liu, 347 F.3d at 1133 (citing Bachelder,
259 F.3d at 1123 n.9).
3674 SANDERS v. CITY OF NEWPORT
B. The District Court’s Instructions were Erroneous

[3] The district court’s jury instruction placed the burden
of proof on Sanders to establish that the City had no reason-
able cause for failing to reinstate her. On appeal, Sanders
argues that, contrary to the district court’s instruction, the bur-
den of proof should have been placed on the City.6 This is an
issue of first impression in this court. Although the issue was
raised in Gambini v. Total Renal Care, Inc., 486 F.3d 1087
(9th Cir. 2007), we have not directly addressed which party
bears the ultimate burden of proof when an employer alleges
that he had a legitimate reason not to reinstate an employee.
In Gambini, the plaintiff appealed the denial of her FMLA
interference claim alleging that the jury instructions misstated
the law regarding which party had the burden of proving
whether the employer would have terminated the employee
had the employee not taken FMLA leave. Id. at 1097. We
found that we did not need to decide the issue because the
defendant offered “uncontradicted evidence that [the
employer] terminated Gambini for conduct unrelated to her
FMLA leave.” Id. As the issue remains unresolved, we must
determine which party carries the burden of proof when an
employer defends against an interference claim.

[4] The key regulation at issue in this case is 29 C.F.R.
§ 825.214. That regulation addresses an employee’s right to
return to work following FMLA leave. Subsection (a) pro-
vides that “[o]n return from FMLA leave, an employee is
entitled to be returned to the same position the employee held
when leave commenced, or to an equivalent position . . . .” Id.
Subsection (b) further provides that “[i]f the employee is
6
The City argues that Sanders failed to preserve any objection to the
court’s FMLA instruction, but the extensive discussion quoted above in
Part I clearly shows that Sanders complied with Federal Rule of Civil Pro-
cedure 51 by objecting at the time of trial “on grounds that were suffi-
ciently precise to alert the district court to the specific nature of the
defect.” Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1015 (9th
Cir. 2007) (internal quotation marks omitted); see Fed. R. Civ. P. 51(c).
 SANDERS v. CITY OF NEWPORT 3675
unable to perform an essential function of the position
because of a physical or mental condition, including the con-
tinuation of a serious health condition, the employee has no
right to restoration to another position under the FMLA.” Id.
Although the text of § 825.214(b) is ambiguous with respect
to the parties’ respective burdens, it is clear from other regula-
tions that the burden rests with the employer to establish
whether the employee can perform the essential functions of
the job. Section 825.312(d) provides: “An employer must be
able to show, when an employee requests restoration, that the
employee would not otherwise have been employed if leave
had not been taken in order to deny restoration to employ-
ment.” 29 C.F.R. § 825.312(d) (emphasis added) (titled
“Under what circumstances may a covered employer refuse to
provide FMLA leave or reinstatement to eligible employ-
ees?”). Section 825.216(a) is to the same effect, and provides
that “[a]n employer must be able to show that an employee
would not otherwise have been employed at the time rein-
statement is requested in order to deny restoration to employ-
ment.” Thus, the plain language of the pertinent DOL
regulations provides that the burden is on the employer to
show that he had a legitimate reason to deny an employee
reinstatement.

The majority of the circuits that have considered this issue
agree with this textual reading.7 The Eighth, Tenth and Elev-
enth Circuits, relying on the plain text of 29 C.F.R.
§ 825.216(a), have all held “that the regulation validly shifts
to the employer the burden of proving that an employee . . .
would have been dismissed regardless of the employee’s
request for, or taking of, FMLA leave.” Smith, 298 F.3d at
963; see Throneberry, 403 F.3d at 979; Strickland, 239 F.3d
at 1208. That approach is also consistent with the Supreme
7
The Seventh Circuit, over a dissent, relying on its previous case law
interpreting the statute rather than the plain text of the regulations, has
held that the burden of proof remains with the employee. Rice, 209 F.3d
at 1018.
3676 SANDERS v. CITY OF NEWPORT
Court’s admonition that the burden of proof should “conform
with a party’s superior access to the proof.” See Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 359 n.45 (1977).

[5] We agree with the Tenth Circuit that this is the “more
natural” reading of the text of 29 C.F.R. § 825.214(b); Smith,
298 F.3d at 963. Moreover, this interpretation follows the
analysis set forth in Bachelder and Xin Liu, both of which
rejected the McDonnell Douglas burden-shifting framework
in analyzing FMLA interference claims. Xin Liu, 347 F.3d at
1136; Bachelder, 259 F.3d at 1125. In light of the text of the
pertinent DOL regulations, we conclude that when an
employer seeks to establish that he has a legitimate reason to
deny an employee reinstatement, the burden of proof on that
issue rests with the employer. Thus, for example, if an
employer denies an employee reinstatement on the ground
that the employee cannot perform the essential functions of
the employee’s position, the burden of proof rests with the
employer, not the employee. The district court’s contrary
instruction to the jury was therefore erroneous.

[6] Further, as noted above, the FMLA requires that an
employer reinstate an employee after taking such leave, so
long as the employee would still be employed in the position
had she not taken FMLA leave. 29 U.S.C. § 2614(a)(1)(A),
(a)(3)(B). The text of § 2614(a)(3) does not allow an
employer to interfere with an employee’s right to reinstate-
ment for “reasonable cause.” Moreover, the DOL regulations
interpreting the “limitations on an employer’s obligation to
reinstate an employee” include no reference to a “reasonable
cause” standard. See, e.g., 29 C.F.R. § 825.216. Here, the
court’s instruction required Sanders to prove that the City did
not have “reasonable cause” to deny her reinstatement. This
was error. The five elements of a prima facie right-to-
reinstatement claim, discussed above, only require an
employee to prove that she was entitled to FMLA benefits and
that “h[er] employer denied h[er] FMLA benefits to which
[s]he was entitled.” Burnett, 472 F.3d at 477. By adding a rea-
 SANDERS v. CITY OF NEWPORT 3677
sonable cause requirement as an element of Sanders’s rein-
statement claim, the court’s instruction permitted the jury to
assess the City’s overall response to Sanders’s complaints
rather than directing the jury to consider the specific reasons
under DOL regulations why the City refused to reinstate
Sanders to her former position after taking FMLA leave. This
approach is contrary to the FMLA and DOL regulatory
scheme discussed above. Thus, the court’s FMLA instruction
was erroneous because it required Sanders to disprove that the
City had reasonable cause not to reinstate her after taking
FMLA leave.

C. The District Court’s Erroneous Jury Instruction
was not Harmless

[7] “ ‘An error in instructing the jury in a civil case
requires reversal unless the error is more probably than not
harmless.’ ” Dang v. Cross, 422 F.3d 800, 811 (9th Cir. 2005)
(quoting Caballero v. City of Concord, 956 F.2d 204, 206
(9th Cir. 1992)). “We presume prejudice where civil trial
error is concerned and the burden shifts to the defendant to
demonstrate that it is more probable than not that the jury
would have reached the same verdict had it been properly
instructed.” Id. (internal citations and alterations omitted).
Because the City has not met its burden, we conclude that the
error was not harmless.

[8] “[W]hen ‘the trial court erroneously add[s] an extra
element to [the plaintiff’s] burden of proof,’ it is ‘unlikely that
the error w[ill] be harmless.’ ” Clem v. Lomeli, 566 F.3d
1177, 1182 (9th Cir. 2009) (quoting Caballero, 956 F.2d at
207). Here, the district court not only read “reasonable cause”
into the FMLA and the statutory regulations, but also put the
burden on Sanders to disprove the existence of “reasonable
cause.” The district court’s misstatement of the law thus
added an extra element to Sanders’s burden of proof.

“Prejudice is also generally more likely than not if ‘nothing
about th[e jury’s] verdict indicates that the result would have
3678 SANDERS v. CITY OF NEWPORT
been the same without the error.’ ” Clem, 566 F.3d at 1182
(quoting Caballero, 956 F.2d at 207); see also Gambini, 486
F.3d at 1093 (“In reviewing a civil jury instruction for harm-
less error, the prevailing party is not entitled to have disputed
factual questions resolved in his favor because the jury’s ver-
dict may have resulted from a misapprehension of law rather
than from factual determinations in favor of the prevailing
party.” (quoting Swinton v. Potomac Corp., 270 F.3d 794,
805-06 (9th Cir. 2001))). In Clem, the jury instructions failed
to properly explain the term “deliberately indifferent” when
setting out the elements of an Eighth Amendment violation
under 42 U.S.C. § 1983. Clem, 566 F.3d at 1183. Specifically,
the jury was erroneously instructed that the defendant needed
to “act” in order to find that he was deliberately indifferent,
even though defendant’s “failure to act” would also suffice.
Id. at 1181. We held that it was impossible to determine
whether the error was harmless because the jury was only
asked to answer the question—was the defendant deliberately
indifferent—to which the jury answered “No.” Id. at 1183.

Similarly, as noted above, the verdict form here contained
the following question regarding Sanders’s FMLA claim:
“Did the plaintiff prove by a preponderance of the evidence
that the defendant, without reasonable cause, failed to rein-
state her after she took family medical leave?” (Emphasis
added.) The jury’s answer to this question was “No.” The
judge did not give any instructions regarding the meaning of
“reasonable cause.” In light of the question the jury was asked
to answer, it is not clear whether the jury would have found
for or against Sanders if the jurors had not been instructed to
consider whether the City acted without “reasonable cause.”

The City additionally argues that any error in the FMLA
jury instruction was harmless because it had met its burden of
proof to demonstrate that Sanders was unable to perform the
essential functions of her job. The City contends that its evi-
dence at trial showed that it refused to reinstate Sanders fol-
lowing her FMLA leave, “because it could not provide a safe
 SANDERS v. CITY OF NEWPORT 3679
workplace for her in light of her physician’s requirements and
statements about plaintiff’s multiple chemical sensitivity.”
Although the City failed to assert any regulatory exception in
the district court, we construe its argument as implicitly
invoking this defense. The City thus argues that any error in
the jury instruction was harmless, because it satisfied its bur-
den of proof for the exception to reinstatement set forth in 29
C.F.R. § 825.214(b).

“Determining what functions are ‘essential’ to a particular
position is a question of fact.” Brumbalough v. Camelot Care
Ctrs., Inc., 427 F.3d 996, 1005 (6th Cir. 2005). Because an
employee’s inability to complete the essential functions of her
job is a legitimate reason to deny reinstatement, the DOL reg-
ulations list (and limit) the details that an employer may
require in a medical certification prior to reinstatement,
assuming the employer regularly requires such certification of
its employees after FMLA leave. 29 C.F.R. § 825.306; see
also 29 C.F.R. §§ 825.307, 825.310, 825.311. Therefore, we
consider the court’s jury instruction, the question posed in the
verdict form, and the evidence presented to the jury, to deter-
mine if the jury found that Sanders could not perform the
essential functions of her position.

As discussed earlier, because the court improperly
instructed the jury on the issue of reasonable cause, the jury
instruction and verdict form are unhelpful in determining
whether the jury found that Sanders could perform the essen-
tial functions of her position. The evidentiary record is also
unhelpful because the City did not explicitly raise the regula-
tory exception, thus neither party had an opportunity to put
forth evidence as to whether Sanders could perform the essen-
tial functions of her position. Indeed, the City never even sub-
mitted any evidence describing the “essential functions” of
Sanders’s job. Thus, neither the jury’s verdict nor the eviden-
tiary record permits us to determine whether the City carried
its burden to prove that it had a legitimate reason for failing
to reinstate Sanders. As we cannot determine if the City met
3680 SANDERS v. CITY OF NEWPORT
its burden of proof under 29 C.F.R. § 825.214(b), we cannot
hold that the erroneous jury instruction regarding “reasonable
cause” was harmless.

[9] In sum, the district court’s error in instructing the jury
was not harmless, because it added an unnecessary element to
Sanders’s burden of proving her FMLA reinstatement claim,
and it is impossible to determine from the jury’s verdict and
evidentiary record that the jury would have reached the same
result had it been properly instructed.

D. The Erroneous FMLA Jury Instruction Under-
mines Any Determination of the Oregon State Law
Claim

The Oregon Family Leave Act, Or. Rev. Stat.
§§ 659A.150-186, is to “be construed to the extent possible in
a manner that is consistent with any similar provisions of the
federal Family and Medical Leave Act of 1993.” Or. Rev.
Stat. § 659A.186(2) (2009). Consistent with this legislative
declared intent, the Oregon courts have looked to federal law
when interpreting OFLA. See Yeager v. Providence Health
Sys. Or., 96 P.3d 862, 866 (Or. Ct. App. 2004); Centennial
Sch. Dist. No. 28J v. Or. Bureau of Labor & Indus., 10 P.3d
945, 951-52 (Or. Ct. App. 2000). Similar to the reinstatement
rights under FMLA, 29 U.S.C. § 2614(a)(1), OFLA also pro-
vides for reinstatement of an employee who has taken OFLA
leave. See Or. Rev. Stat. § 659A.171, see also Or. Admin. R.
§ 839-009-0270(1). In light of these similar statutory and reg-
ulatory provisions, the district court properly applied the same
legal standards under FMLA to Sanders’s OFLA claim.8 As
8
The City argues that Sanders may not maintain a “failure to reinstate”
claim under OFLA. The district court, relying on Or. Rev. Stat. section
659A.171(1), Yeager, 196 P.3d 862, and Or. Admin. R. section 839-009-
0270, rejected that argument. Because we conclude that the district court’s
judgment on this claim must be reversed for the reasons explained in the
text, we need not address this issue.
 SANDERS v. CITY OF NEWPORT 3681
explained above, however, the district court misinterpreted
the FMLA when it required Sanders to prove that the City’s
failure to reinstate her was without reasonable cause.9

[10] In a case like this one, where legal claims tried by the
jury and equitable claims tried by the court are “based on the
same set of facts, the Seventh Amendment requires the trial
judge to follow the jury’s implicit or explicit factual determi-
nations.” Miller v. Fairchild Indus., Inc., 885 F.2d 498, 507
(9th Cir. 1989). Because of the error in the court’s FMLA jury
instruction and verdict form, we cannot determine what fac-
tual findings the jury might have made with regard to Sand-
ers’s FMLA claim. Because the jury was not properly
instructed, it is impossible to determine the factual basis for
the jury’s verdict and whether the district court violated the
Seventh Amendment in granting Sanders relief under OFLA.
Indeed, in explaining why it reached a different result on
Sanders’s OFLA claim, the district court relied on the errone-
ous “reasonable cause” standard that forms the basis for the
reversible error in the FMLA claim. Therefore, the district
court’s judgment for Sanders on her OFLA claim must be
vacated and reconsidered after retrial of Sanders’s FMLA
claim.

III. Conclusion

For all of the above reasons, we conclude that the district
court erred in its formulation of the FMLA jury instruction
and that this error was prejudicial. We thus vacate the judg-
ment on the jury’s verdict and remand the case for a new trial.
Because the district court also used an incorrect legal standard
in evaluating Sanders’s OFLA claim, and the claim is depen-
dent on facts found by the jury, we also vacate the district
court’s judgment in favor of Sanders, with instructions that
9
Notably, the relevant OFLA provisions do not contain a “reasonable
cause” element. See Or. Rev. Stat. §§ 659A.171, 659A.183(2),
659A.186(2).
3682 SANDERS v. CITY OF NEWPORT
the district court reconsider Sanders’s OFLA claim after the
retrial of the FMLA claim. Because Sanders is no longer the
prevailing party on her OFLA claim, an award of attorney’s
fees and costs is premature. We therefore vacate the order
granting attorney’s fees and costs to Sanders.

VACATED and REMANDED.

The parties shall bear their own costs on appeal.