FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK FARRELL,
Plaintiff-Appellee,
v. No. 06-35484
TRI-COUNTY METROPOLITAN D.C. No.
CV-04-00296-OMP
TRANSPORTATION DISTRICT OF
OREGON, a municipal corporation OPINION
dba: Tri-Met,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted
May 9, 2008—Portland, Oregon
Filed June 27, 2008
Before: Richard C. Tallman and Richard R. Clifton,
Circuit Judges, and Earl H. Carroll,* District Judge.
Opinion by Judge Carroll
*The Honorable Earl H. Carroll, Senior United States District Judge,
District of Arizona, sitting by designation.
7723
FARRELL v. TRI-COUNTY MTD 7725
COUNSEL
Keith M. Garza, Milwaukie, Oregon, for the defen-
dant-appellant.
Daniel Snyder, Portland, Oregon, for the plaintiff-appellee.
OPINION
CARROLL, District Judge:
Appellant Tri-County Metropolitan Transportation District
of Oregon (“TriMet”) appeals a trial verdict in favor of
Appellee Frank Farrell (“Farrell”) awarding him $1,110.00 in
lost wages under the Family Medical Leave Act (the
“FMLA”). TriMet presents a single issue on appeal: Whether
the FMLA allows a plaintiff to recover damages for absences
from work that were caused by an emotional condition that
itself resulted from the employer’s wrongful denial of FMLA
leave. We affirm.
Background
Only a few facts are relevant to our inquiry. Farrell began
working for TriMet in 1996. During a pre-employment exam-
ination, Farrell learned that he had diabetes. By 2001, Farrell
also suffered from eczema, chronic obstructive pulmonary
disease, asthma, emphysema and/or chronic bronchitis. In
7726 FARRELL v. TRI-COUNTY MTD
September 2003, pursuant to the FMLA, Farrell repeatedly
requested permission to be absent from work as a result of his
medical conditions. TriMet denied several of his requests and,
shortly thereafter, Farrell was diagnosed with an adjustment
disorder, anxiety and depression.
Farrell sued TriMet under the FMLA, the Americans with
Disabilities Act of 1990, the Oregon Family Leave Act
(“OFLA”), and the Oregon Rehabilitation Act. Only a subset
of Farrell’s FMLA and OFLA claims were submitted to the
jury. The jury found that TriMet: (1) “wrongly den[ied] one
or more requests by [Farrell] for leave under the [FMLA]”;
(2) that the “wrongful denial(s) . . . result[ed] in emotional
stress or other mental problems that caused [Farrell] to miss
additional day(s) of work”; and (3) that Farrell was entitled to
$1,110 in lost wages “for days of work that he missed because
of stress or other mental problems resulting from the wrongful
denial of FMLA leave[.]” After the jury’s verdict, TriMet
filed a renewed motion for judgment as a matter of law. The
district court denied the motion on the grounds that “the rela-
tionship between the FMLA violation and the lost wages is
not so tenuous or remote as to preclude [Farrell] from recov-
ering his economic damages in the form of lost wages.”
On appeal, TriMet admits that it violated the FMLA by
denying one or more of Farrell’s requests for medical leave.
TriMet also does not challenge that its denials caused Farrell
to experience emotional distress. TriMet contends, however,
that “Congress did not intend FMLA to permit the recovery
of consequential or emotional distress damages [which] is
what [Farrell] received here . . . when the jury awarded him
damages for time loss induced by emotional distress.”
Discussion
Section 2617 of the FMLA provides that any employer who
violates Section 2615 shall be liable to any eligible employee
affected, for damages equal to the amount of:
FARRELL v. TRI-COUNTY MTD 7727
(I) any wages, salary, employment benefits, or other
compensation denied or lost to such employee by
reason of the violation; or
(II) in a case in which wages, salary, employment
benefits, or other compensation have not been denied
or lost to the employee, any actual monetary losses
sustained by the employee as a direct result of the
violation, such as the cost of providing care, up to a
sum equal to 12 weeks . . . of wages or salary for the
employee . . . .
29 U.S.C. § 2617(a)(1)(A)(i). Farrell contends he is entitled to
damages under Section 2617 because the anxiety and depres-
sion he suffered as a result of TriMet’s denial of his requests
for FMLA leave “caused [him] to be unable to work as a bus
driver and he had to take some days off of work under doc-
tor’s orders.” In other words, Farrell seeks damages equal to
“wages . . . lost . . . by reason of the violation.” 29 U.S.C.
§ 2617(a)(1)(A)(i)(I).
[1] It is well-settled that the FMLA, by its terms, “only pro-
vides for compensatory damages and not punitive damages.”
Liu v. Amway Corp., 347 F.3d 1125, 1133 n.6 (9th Cir. 2003)
(citing 29 U.S.C. § 2617(a)). The Sixth Circuit recently
explained that recovery for emotional distress is not available
under the FMLA “[b]ecause the FMLA specifically lists the
types of damages that an employer may be liable for, and it
includes damages only insofar as they are the actual monetary
losses of the employee such as salary and benefits and certain
liquidated damages”. Brumbalough v. Camelot Care Ctrs.,
Inc., 427 F.3d 996, 1007 (6th Cir. 2005) (emphasis added);
accord Rodgers v. City of Des Moines, 435 F.3d 904, 908-09
(8th Cir. 2006); Walker v. United Parcel Serv., Inc., 240 F.3d
1268, 1277 (10th Cir. 2001); Graham v. State Farm Mut. Ins.
Co., 193 F.3d 1274, 1284 (11th Cir. 1999); Nero v. Indus.
Molding Corp., 167 F.3d 921, 930 (5th Cir. 1999); Cianci v.
Pettibone Corp., 152 F.3d 723, 728-29 (7th Cir. 1998).
7728 FARRELL v. TRI-COUNTY MTD
[2] Here, the jury’s verdict reflects that Farrell was not
awarded FMLA damages for emotional distress, but rather
“for days of work that he missed because of stress or other
mental problems resulting from the wrongful denial of FMLA
leave.” (Emphasis added). Unlike emotional distress, which
requires valuating an intangible, see, e.g. Brumbalough, 427
F.3d at 1007-08, this calculation can easily be quantified, in
accordance with Section 2617, as an “actual monetary
loss[ ],” Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721,
740 (2003), by determining the wages Farrell would have
earned on the days he could have worked, but was unable to
do so because of TriMet’s violation.
[3] The jury’s verdict in this case is consistent with Tri-
Met’s position that “Congress decided that aggrieved employ-
ees must bear the cost of their own psychological damages
when it comes to harm caused by employers violating
FMLA” because the verdict does not require TriMet to com-
pensate Farrell for “psychological damages.” Rather, the ver-
dict requires TriMet to compensate Farrell for the wages he
lost “by reason of [its] violation.” 29 U.S.C.
§ 2617(a)(1)(A)(i)(I). The jury’s verdict was limited to wages
actually lost as a result of TriMet’s FMLA violation, and thus,
the award was not “a back-door means of recovery for psy-
chic injuries.”
The actual issue presented on appeal is straightforward and
requires no reworking of established precedent. TriMet vio-
lated the FMLA and Farrell was awarded $1,110 in lost wages
for days of work that he missed as a result of TriMet’s viola-
tion.
AFFIRMED.