Pagán-Colón v. Walgreens of San Patricio, Inc.

United States Court of Appeals
For the First Circuit

Nos. 11-1089
11-1091

JUAN C. PAGÁN-COLÓN; ADA I. RENTA-BONILLA;
CONJUGAL PARTNERSHIP PAGÁN-RENTA,

Plaintiffs, Appellees, Cross-Appellants,

v.

WALGREENS OF SAN PATRICIO, INC.,

Defendant, Appellant, Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.

Gregory T. Usera, with whom Natalia Villavicencio and Usera,
Figueroa & Giner, P.S.C. were on brief, for appellant.
Jorge Martínez-Luciano, with whom Alfredo Acevedo-Cruz was on
brief, for appellees.

September 4, 2012
 LIPEZ, Circuit Judge. This case arises from the

termination of the plaintiff-appellee, Juan Pagán-Colón, from his

job as an assistant manager at a Walgreens store in Juana Díaz,

Puerto Rico. Although the parties disagree as to the reason for

Pagán's termination, there is no dispute that he was fired after a

two-week absence from his job due to a medical condition that

required one week of hospitalization and another week of

recuperation. Following Pagán's termination, he and his wife, Ada

Renta-Bonilla, brought claims in federal district court against

Walgreens alleging that he was fired in retaliation for conduct

protected by the Family Medical Leave Act ("FMLA"), 29 U.S.C.

§§ 2601-54; that his termination was wrongful under Puerto Rico

law; and that the loss of Pagán's job caused Renta to suffer

emotional distress compensable under Puerto Rico law. After the

district court granted summary judgment for Walgreens on Renta's

claim and the plaintiffs voluntarily dismissed the other Puerto

Rico law claim, the FMLA claim went to trial and a jury found in

Pagán's favor, awarding compensatory damages.

On appeal, Walgreens argues that it was entitled to

judgment as a matter of law on the FMLA claim and that the district

court erred in denying a Federal Rule of Civil Procedure 59(e)

motion to amend the judgment. In turn, Pagán and Renta argue that

the court erred in denying liquidated damages on the FMLA claim and

-2-
in granting Walgreens summary judgment on Renta's Puerto Rico law

claim.

For the reasons described below, we affirm the judgment

of the district court in all respects, save its rejection of

Renta's Puerto Rico law claim. That claim presents an important

and unresolved issue of Puerto Rico law that we decline to address

in the first instance. Accordingly, we certify the question to the

Supreme Court of Puerto Rico and reserve judgment on this

particular issue pending its response. Additionally, as a matter

of first impression, we conclude that a backpay award under the

FMLA may include overtime compensation.

I.

A. Factual Background

As we are called upon to review the denial of a motion

for judgment as a matter of law, we review the evidence "in the

light most favorable to the verdict" in favor of Pagán. Alvarado-

Santos v. Dep't of Health, 619 F.3d 126, 132 (1st Cir. 2010).

1. Pagán's Hospitalization and Discharge

Pagán began working for Walgreens in September 2000. By

the time of his discharge in 2008, he had been promoted to

assistant manager of the Walgreens store in Juana Díaz. On May 10,

2008, Pagán reported for work at 4 a.m., but shortly thereafter he

began to experience chest pains, heart palpitations, and sweating.

His symptoms worsened that morning, and during his 9 a.m. break he

-3-
went to the emergency room at a local hospital. Already suffering

from type II diabetes, he was found to have high blood sugar and

high blood pressure, and he asked hospital staff to contact his

wife, Renta.

When Renta arrived, Pagán asked her to contact Edwin

Figueroa, the manager of the store at which he worked, and tell

Figueroa that he was in the hospital and unsure when he could

return to work. She did so immediately after leaving the emergency

room at approximately 10 a.m. She also called the store twice more

that day to give updates on Pagán's condition and inform those at

the store of his admission to the hospital. Pagán was hospitalized

from May 10 to 17, and he underwent a cardiac catheterization

surgical procedure on May 16. During his hospitalization, he was

in contact with co-workers, including another assistant manager

whom he told of his upcoming surgical procedure.

Pagán was discharged from the hospital on May 17. That

day, he went to the Walgreens store at which he worked to pick up

prescription medication and deliver a medical certificate

explaining his absence. He met with assistant manager Mariel

Colón, who was the most senior employee present at the time, and

bookkeeper Wanda Santiago. During this meeting, he told Colón that

his doctors had ordered him to rest at home for one week and he

presented the medical certificate to Santiago, a fact verified by

that day's surveillance video footage from the store and stipulated

-4-
by the parties at trial. However, Figueroa, the store's manager,

testified that news of Pagán's hospitalization, physician-ordered

recuperative rest, and delivery of the medical certificate was not

communicated to him.

2. Pagán's Termination

After consultation with the Walgreens district supervisor

and corporate legal counsel, Figueroa sent a letter dated May 19 to

Pagán, stating that he had not heard from Pagán and had no

explanation for his extended absence. The letter asked that Pagán

contact Walgreens management to determine his eligibility for

disability leave, and stated that if he did not do so within 48

hours there might be "negative consequences for [his] job." Pagán

did not receive this letter until May 28,1 well after the

expiration of the 48-hour deadline, and Figueroa never called Pagán

or made any other attempt to get in touch with him. On May 23,

having not heard from Pagán, Figueroa again consulted with the

district supervisor and legal counsel, and the decision was made to

terminate Pagán's employment with the understanding that he had

abandoned his job.

Unaware of this decision, Pagán went to the store that

same day to let others know that he was available to return to work

the following day and to determine what his work schedule would be.

1
Although the letter was dated May 19, Figueroa testified
that he did not mail the letter until sometime on or after May 23.

-5-
He spoke with assistant manager Ivelisse López, who agreed to speak

with other managers and let Pagán know when she learned of his

schedule. After Figueroa became aware of Pagán's visit, he asked

López to contact Pagán with instructions to come into the store to

meet with him at 8 a.m. the following day. When Pagán came to work

on May 24, Figueroa told him that he was fired and asked him to

return his keys to the store. Figueroa offered no explanation for

the termination. When Pagán asked for one, Figueroa simply told

him to contact Walgreens' corporate offices. After trying

unsuccessfully for several days to contact someone at Walgreens'

corporate offices by phone, Pagán went to the office in person and

was able to meet with Miriam Díaz of Walgreens' Human Resources

Department. Díaz was also unable to explain his termination, but

she said that she would look into the matter and give Pagán an

answer.

Upon realizing that Pagán had documentation of his

hospitalization and doctor-ordered rest, Figueroa, in consultation

with the Walgreens district manager and Walgreens legal counsel,

decided to reconsider his termination. On June 3, Figueroa called

Pagán to ask him to come to the store to be interviewed. The next

day, Pagán met with Figueroa and another Walgreens employee and

described to them the circumstances of his hospitalization and

attempts to notify Walgreens of his absence. After this meeting,

Figueroa attempted to verify Pagán's account by talking with the

-6-
Walgreens employees that Pagán claimed that he or his wife had

contacted. According to Figueroa, at least one individual that

Pagán claimed his wife had contacted had no recollection of the

call, and neither of the individuals that Pagán met with on May 17

recalled receiving a medical certificate from him. Accordingly,

Figueroa concluded that Pagán had lied to him during the

investigation and, again in consultation with the district manager

and legal counsel, Figueroa decided to terminate Pagán for his

dishonesty -- a decision that Walgreens insists was entirely

independent of Pagán's hospitalization and related absence.

Accordingly, on June 6, Pagán was notified that his termination was

confirmed, but the basis was changed from his two-week absence to

his alleged dishonesty during the investigation.

B. Procedural History

Shortly after his discharge, Pagán and his wife filed a

complaint against Walgreens in the United States District Court for

the District of Puerto Rico. They raised several claims,

including: 1) retaliation under the FMLA, 2) wrongful termination

in violation of Puerto Rico Law 80, P.R. Laws Ann. tit. 29,

§§ 185a-185m, and 3) damages under Articles 1802 and 1803 of the

Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 5141-5142. The

district court granted summary judgment for Walgreens on the

Article 1802 and 1803 claims, and the plaintiffs voluntarily

-7-
dismissed their Law 80 claim during the course of the trial.

Accordingly, only the FMLA claim was submitted to the jury.

At the close of evidence, Walgreens moved for judgment as

a matter of law pursuant to Federal Rule of Civil Procedure 50, but

the court denied the motion and submitted the case to the jury. The

jury rendered a judgment in favor of Pagán, awarding him $100,000

in damages. Sua sponte, the court ordered remittitur, reducing the

award to $47,145 to match Pagán's estimated lost wages (including

overtime) and account for earnings at a new job that mitigated

damages. The court also denied Pagán's request for additional

liquidated damages under the FMLA.2 Finally, the court considered

dueling Rule 59(e) motions to amend the judgment. It allowed

Pagán's motion to grant prejudgment interest on the award, but

denied Walgreens' motion seeking to eliminate or reduce the

overtime pay included in the damages award.

On appeal, Walgreens challenges the district court's

denial of its Rule 50 and 59(e) motions. With regard to the

former, it argues that Pagán presented insufficient evidence at

trial to establish its liability under the FMLA. On the latter, it

argues that it is entitled to an amended judgment because back pay

for overtime is not available under the FMLA and, even if it is,

2
As discussed below, the FMLA provides that a plaintiff is
entitled to liquidated damages unless the defendant is able to show
that its violation of the statute "was in good faith and that [it]
had reasonable grounds for believing that the act or omission was
not a violation of [the FMLA]." 29 U.S.C. § 2617(a)(1)(A)(iii).

-8-
the court's award in this case is excessive. In turn, Pagán and

his wife have cross-appealed, arguing that the district court erred

in denying their request for liquidated damages and in granting

Walgreens summary judgment on their Article 1802 and 1803 claims.

II.

A. Rule 50 Motion for Judgment as a Matter of Law

1. Legal Framework

We review the denial of a Rule 50 motion for judgment as

a matter of law de novo. Alvarado-Santos, 619 F.3d at 132. In

doing so, we view the evidence "in the light most favorable to the

verdict and may reverse only if no reasonable person could have

reached the conclusion arrived at by the jury." Id. Thus, "our

review is weighted toward preservation of the jury verdict because

a verdict should be set aside only if the jury failed to reach the

only result permitted by the evidence." Analysis Group, Inc. v.

Central Fla. Invest., Inc., 629 F.3d 18, 22 (1st Cir. 2010)

(quoting Quiles-Quiles v. Henderson, 439 F.3d 1, 4 (1st Cir. 2006))

(internal quotation marks omitted).

Here, the jury had to determine whether Walgreens had

retaliated against Pagán for conduct protected by the FMLA. We

have previously explained that, among other things, the FMLA

prohibits retaliation against employees who take FMLA leave. See

Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331

-9-
(1st Cir. 2005). In particular, interpretive regulations provide

that

[a]n employer is prohibited from
discriminating against employees or
prospective employees who have used FMLA
leave. For example, . . . employers cannot
use the taking of FMLA leave as a negative
factor in employment actions, such as hiring,
promotions or disciplinary actions; nor can
FMLA leave be counted under 'no fault'
attendance policies.

29 C.F.R. § 825.220(c); see also Colburn, 429 F.3d at 331, 331 n.2

(noting that, although the FMLA does not explicitly reference

"retaliation," such a prohibition is implicit in the statute and

universally recognized). Accordingly, a crucial component of an

FMLA retaliation claim is some animus or retaliatory motive on the

part of the plaintiff's employer that is connected to protected

conduct. See Colburn, 429 F.3d at 335; Hodgens v. Gen. Dynamics

Corp., 144 F.3d 151, 160 (1st Cir. 1998).

Thus, to make out a prima facie case of retaliation, a

plaintiff must show that: 1) he availed himself of a protected

right under the FMLA, 2) he was adversely affected by an employment

decision, and 3) there was a causal connection between the

protected conduct and the adverse employment action. See Orta-

Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105,

113-14 (1st Cir. 2006); Colburn, 429 F.3d at 335. Where the

plaintiff provides no direct evidence of retaliation, we have

relied on the burden-shifting framework established by the Supreme

-10-
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As

we have explained,

[u]nder that framework, a plaintiff employee
must carry the initial burden of coming
forward with sufficient evidence to establish
a prima facie case of . . . retaliation. If
he does so, then the burden shifts to the
employer "to articulate some legitimate,
nondiscriminatory reason for the employee's
[termination]" . . . . If the employer's
evidence creates a genuine issue of fact, the
presumption of discrimination drops from the
case, and the plaintiff retains the ultimate
burden of showing that the employer's stated
reason for terminating him was in fact a
pretext for retaliating against him for having
taken protected FMLA leave.

Hodgens, 144 F.3d at 160-61 (quoting McDonnell Douglas, 411 U.S. at

802).

2. Denial of Walgreens' Rule 50 Motion

Walgreens argues that it provided a valid non-

discriminatory reason for Pagán's termination and thus, under the

McDonnell Douglas framework, it was Pagán's burden to show that

this stated reason was in fact pretextual. According to Walgreens,

Pagán failed to introduce sufficient evidence at trial to permit

the jury to find that its stated reason for the termination was

false and the real reason was retaliation. This argument is

unpersuasive.

Walgreens offered two rationales for Pagán's termination.

Initially, it determined that Pagán had abandoned his job. After

reconsidering its decision, it determined that Pagán should be

-11-
terminated because of his dishonesty during its investigation.

Even if we accept that each of these explanations was, on its face,

a valid non-discriminatory reason for Pagán's termination, there

was sufficient evidence to permit the jury to reject both

rationales as pretext.

With regard to Pagán's supposed abandonment of his job,

Figueroa testified that after learning that Pagán left work to go

to the hospital on May 10, he heard nothing about Pagán's

hospitalization, surgery, or physician-ordered recuperative rest

until May 23. However, there was extensive evidence that Pagán put

his employer on notice of his condition, including evidence that

he: 1) made repeated efforts to contact his employer on the day

that he entered the hospital, 2) was in contact with co-workers

throughout his hospitalization, 3) went to the store at which he

was employed on the day of his discharge and told the most senior

manager there that he would be out for another week, 4) provided a

certificate from his physician explaining his hospitalization and

the need for recuperative rest, and 5) made an effort to determine

his work schedule on the day before his week of physician-ordered

rest ended.

Furthermore, the fact that Figueroa's May 19 letter to

Pagán provided only forty-eight hours to contact a Walgreen's

manager, and was not mailed until it was too late for Pagán to act

within the deadline, is also suggestive of pretext. Finally, the

-12-
close temporal proximity between Pagán's FMLA-protected leave and

his termination suggests a causal connection between the two.

While temporal proximity on its own is insufficient to establish

pretext, it is relevant evidence that, combined with other facts,

may support such a finding. See Hodgens, 144 F.3d at 168. The

jury was entitled to rely on this evidence in aggregate to

determine that, his testimony notwithstanding, Figueroa was aware

that Pagán had not abandoned his job and that this explanation was

pretextual.

Walgreens' second explanation -- that Pagán was dishonest

during its investigation -- is similarly susceptible to attack.

Although Walgreens points to inconsistencies in Pagán's statements

and one alleged attempt to persuade a co-worker to cover for him by

giving the company a false statement,3 this evidence did not compel

a jury to find that dishonesty was the basis for his termination.

Importantly, Walgreens presented evidence that the decision to

terminate Pagán for dishonesty was based, in large part, on Pagán's

statement to Figueroa that he gave a co-worker a medical

certificate explaining his absence when he visited the store on May

17, and Figueroa's inability to find evidence of this hand-off on

the security camera footage from that day. However, at trial,

3
Walgreens asserts that, during its investigation, Pagán
called a potential witness and asked him to remember that Pagán's
wife had called to inform him of Pagán's hospitalization. The
employee stated that he did not receive such a call and notified
investigators of Pagán's call to him.

-13-
Walgreens stipulated that the security camera footage does, in

fact, show Pagán giving a document to a co-worker, and no

explanation is given for this discrepancy.

Furthermore, Walgreens argued that Pagán initially said

he handed the certificate to Colón, the assistant manager he met

with that day, when he actually gave it to Santiago, the other

employee present at the meeting. Walgreens sees in this

inconsistency proof of Pagán's dishonesty. But it was reasonable

for the jury to conclude that this inconsistency was not proof of

dishonesty. More importantly, on this evidence, a reasonable jury

could conclude that Walgreens' explanation that Pagán was dishonest

was pretextual.

Finally, Walgreens' shifting explanations also support

the jury's verdict. We have noted that "[o]ne way [to establish

pretext] is for the plaintiff to show that the employer gave

different and arguably inconsistent explanations for taking the

adverse employment action." McDonough v. City of Quincy, 452 F.3d

8, 18 (1st Cir. 2006) (quoting Dominguez-Cruz v. Suttle Caribe,

Inc., 202 F.3d 424, 432 (1st Cir. 2000)) (internal quotation marks

omitted). This case is an archetypal example of this phenomenon.

Here, Pagán was initially given no explanation for his termination,

despite repeated inquiries. By his own persistence, he eventually

obtained an explanation that he was terminated because his

supervisors had determined that he abandoned his job.

-14-
Subsequently, after it became clear that Pagán could show that no

such abandonment occurred, Walgreens changed the basis for his

termination to his supposed dishonesty during its investigation of

his two-week absence. The jury could reasonably have deemed these

shifting explanations to be a red flag suggesting that Walgreens'

decision to dismiss Pagán was motivated by retaliatory animus.

In summary, for all of the reasons described, there was

sufficient evidence to permit the jury to conclude that Walgreens'

explanations of its reasons for firing Pagán were pretextual.

Walgreens was not entitled to judgment as a matter of law.4 See

Alvarado-Santos, 619 F.3d at 132.

B. Rule 59(e) Motion to Amend the Judgment

In ordering remittitur, the court determined the amount

of Pagán's lost wages, including $20,637 in overtime pay. The

court calculated the amount of overtime pay that Pagán was due by

estimating that he would have worked 6.5 hours of overtime per week

over the 125-week period between his termination and the judgment.

It obtained the 6.5 hours per week figure by looking to the year-

4
We affirm the court's denial of Walgreens' Federal Rule of
Civil Procedure 59(a) motion for a new trial for the same reason.
The denial of a motion for a new trial is reviewed for abuse of
discretion. Cortés-Reyes v. Salas-Quintana, 608 F.3d 41, 48 (1st
Cir. 2010). Such a motion may be granted "only if the verdict is
against the clear weight of the evidence, such that letting it
stand would result in a miscarriage of justice." Id. (internal
quotation marks omitted). As described, the jury's verdict in this
case was amply supported by the evidence. Thus, the court did not
abuse its discretion in denying Walgreens' Rule 59(a) motion.

-15-
to-date average of Pagán's weekly hours during the months prior to

his termination (i.e., the period from January 1, 2008, until

Pagán's termination in May 2008), which was 46.5 hours. However,

the parties stipulated that during the 12-month period prior to

Pagán's termination he had worked an average of 43.5 hours per

week. Thus, the court implicitly assumed that the year-to-date

average was more reliable than the 12-month average for determining

how much overtime Pagán would have worked going forward if he had

not been terminated. Walgreens argues that the computation of lost

compensation under the FMLA should not include overtime pay, and

that, even if it does, the district court should have used the

lower estimate of overtime hours based on the 12-month average

rather than the year-to-date average.

A district court's resolution of a motion to amend the

judgment is ordinarily reviewed for abuse of discretion. Negrón-

Almeda v. Santiago, 528 F.3d 15, 25 (1st Cir. 2008). However,

abstract questions of law presented by such a motion are reviewed

de novo. Id. We have previously held that "[r]eview of the legal

principles used by the district court in determining the

availability of back pay is de novo." Johnson v. Spencer Press of

Me., Inc., 364 F.3d 368, 381 (1st Cir. 2004).

1. Availability of Overtime Backpay Under the FMLA

Although we have not previously addressed the issue, we

see no reason why overtime pay should not be included in an award

-16-
of backpay under the FMLA. The FMLA provides that an employee may

recover "any wages, salary, employment benefits, or other

compensation denied or lost . . . by reason of the violation." 29

U.S.C. § 2617(a)(1)(A)(i)(I). Overtime certainly falls into the

category of "other compensation." This conclusion is consistent

with the way in which damages are calculated for violations of

other employment laws, as "back-pay awards often include payment

for overtime work that an employee would have performed but for her

employer's violation of employment laws." Ricco v. Potter, 377

F.3d 599, 605 (6th Cir. 2004); see also Fryer v. A.S.A.P. Fire &

Safety Corp., 658 F.3d 85, 93 (1st Cir. 2011) (Uniformed Services

Employment and Reemployment Rights Act, 38 U.S.C. §§ 4311 et seq.);

Alexander v. Milwaukee, 474 F.3d 437, 452 (7th Cir. 2007) (Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.);

Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las

Vegas Sands, Inc., 244 F.3d 1152, 1157 (9th Cir. 2001) (Worker

Adjustment Retraining and Notification Act, 29 U.S.C. §§ 2101 et

seq.).

Walgreens offers no authority for the proposition that

backpay for overtime is categorically unavailable to a successful

FMLA plaintiff. Contrary to its suggestion, the Eighth Circuit did

not find in Torson v. Gemini, Inc., 205 F.3d 370 (8th Cir. 2000),

that overtime backpay was categorically unavailable. Instead,

based on the facts of that case, it found that it was too

-17-
speculative to award. Id. at 384. Accordingly, we decline to read

such a limitation into the FMLA where, first, the plain language of

the statute suggests that backpay for overtime is available, and,

second, such a limitation would be inconsistent with our treatment

of violations of other employment laws.

2. The Court's Estimate of Pagán's Overtime

Whether overtime backpay is categorically available under

the FMLA is a question of pure law; in contrast, our review of the

amount of the district court's award presents a factual question.

Accordingly, we review the court's decision to calculate Pagán's

backpay award using the estimate of 6.5 overtime hours per week for

clear error. See Hernández-Miranda v. Empresas Díaz Massó, Inc.,

651 F.3d 167, 170 (1st Cir. 2011).

As noted, the 6.5 overtime hours per week estimate was

based on the year-to-date average of the number of overtime hours

per week that Pagán worked in 2008 before his termination. In its

written decision denying Walgreens' Rule 59(e) motion, the court

explained that this figure was based on pay stubs admitted into

evidence and Pagán's trial testimony. It also noted that Walgreens

had presented no evidence contrary to its finding that Pagán had

worked an average of 46.5 hours per week in 2008 prior to his

termination. This year-to-date average included five months of

data -- a reasonably large sample size -- and it was not clear

error for the court to assume that this was a more accurate

-18-
indicator of the number of overtime hours that Pagán would have

worked going forward than the 12-month average suggested by

Walgreens. Accordingly, we will not disturb the court's

calculation of the amount of backpay due Pagán.

III.

A. FMLA Liquidated Damages

After the jury rendered a verdict in favor of Pagán, the

court denied his request for liquidated damages. The FMLA provides

that in addition to lost wages, an employee "shall" recover

an additional amount as liquidated damages
equal to [lost wages and interest], except
that if an employer who has violated section
2615 of this title proves to the satisfaction
of the court that the act or omission which
violated section 2615 was in good faith and
that the employer had reasonable grounds for
believing that the act or omission was not a
violation of section 2615 of this title, such
court may, in the discretion of the court,
[decline to award liquidated damages].

29 U.S.C. § 2617(a)(iii). Thus, an employer must prove both "good

faith" and "reasonable grounds" to escape liquidated damages, and

the decision of whether to award liquidated damages is left to the

court. Because the employer bears the burden of proof, the statute

creates a "strong presumption in favor of awarding liquidated

damages." Thom v. Am. Standard, Inc., 666 F.3d 968, 976 (6th Cir.

2012).

Considering Pagán's request for liquidated damages, the

court found that, notwithstanding the jury's verdict, Walgreens

-19-
acted in good faith and had reasonable grounds for its termination

of Pagán. In reaching this conclusion, the court explained that

"for purposes of the case, there's two fact finders; there's the

jury for the liability . . . [a]nd then there's the judge as a fact

finder for purposes of the liquidated damages." It reasoned that

Pagán's termination was a "rookie mistake" by Figueroa, who had

been a manager for only one month at the time. Furthermore, the

court looked to the letter sent to Pagán, Figueroa's consultation

with legal counsel, the company's reconsideration of Pagán's

termination, and the fact that Pagán received pay for the two weeks

he was out as evidence of Walgreens' good faith.

On appeal, Pagán argues that the court did not have the

discretion to deny liquidated damages given the jury's verdict. He

asserts that the jury necessarily found that Walgreens did not act

in good faith in terminating him and that the court was bound by

this finding.5 Alternatively, Pagán argues that the court

improperly determined that Walgreens acted in good faith and,

furthermore, erroneously focused only on good faith, ignoring the

second part of the analysis -- whether Walgreens had reasonable

grounds for believing Pagán's termination did not violate the FMLA.

5
The court's instructions to the jury stated that an employer
is not liable for retaliation under the FMLA where it has "an
honest, good faith belief for termination, even if it turns out
that the employer was mistaken in that belief." Furthermore, the
verdict form asked whether the plaintiff had proven by a
preponderance of the evidence that "Walgreen's proffered reason for
the discharge was not legitimate and non-discriminatory."

-20-
 We will not entertain Pagán's argument that the district

court lacked discretion in this case to deny him liquidated damages

because the jury necessarily found that Walgreens did not make its

termination decision in good faith. Pagán did not make this

argument to the district court. In fact, he acknowledged to the

court that he believed that it did have the discretion to make an

independent determination of good faith, the jury's verdict

notwithstanding. At a post-verdict hearing addressing the issue of

liquidated damages, the court repeatedly emphasized that it

understood there to be "two fact finders" and that it "[could] make

a finding of reasonable grounds to terminate, and it would not set

aside the jury verdict but it would be for purposes of the

liquidated damages provision that I make this finding." Pagán did

not object to this description of the court's discretion. In fact,

he stated that "it has been our position that this ruling, whether

or not you will accept defendant's defense against liquidated

damages, is something that is left to the sound discretion of the

court." Furthermore, in a post-verdict motion, Pagán explained his

decision not to raise the liquidated damages issue by noting that

"the [court's] decision on the employer's affirmative defense to

liquidated damages is discretionary in nature." The motion goes on

to repeatedly emphasize that the district court has discretion to

deny liquidated damages and never raises the concern that the fact-

-21-
finding necessary to deny liquidated damages is inconsistent with

the jury's verdict.6

The motion also states that Pagán's decision not to

contest the denial of liquidated damages should "not . . . be

understood as a waiver of his right to bring up the matter on

appeal." However, given Pagán's characterization of the court's

authority to award liquidated damages as "discretionary," this

reservation was plainly intended to cover only Pagán's ability to

contest the merits of the court's determination of good faith, not

its discretion to make this finding. We will honor Pagán's

reservation by taking up the second argument he raises -- that the

court erred in finding that Walgreens had reasonable grounds for

believing Pagán's termination to be lawful. But Pagán may not now

raise the issue of the court's ability to make that finding after

having repeatedly acknowledged its discretion to do so. See United

States v. Taylor, 511 F.3d 87, 91 (1st Cir. 2007) ("Absent

extraordinary circumstances, it is a bedrock rule that when a party

has not presented an argument to the district court, he may not

6
In its reply brief, Walgreens highlights Pagán's failure to
make this argument to the district court. It states: "Not only is
the [decision to] award . . . liquidated damages reserved to the
court . . . , but Plaintiffs admitted as much during trial, when
asked who should make the liquidated damages determination and
eventually both parties agreed [that the court had discretion to do
so]." Walgreens also notes: "During post-trial proceedings, the
Court was very specific in its ruling that the finding of the jury
was for liability but that the Court's ruling was an independent
finding for liquidated damages -- and neither party objected to
this standard of analysis."

-22-
unveil it in the court of appeals." (internal quotation marks

omitted)).

Accordingly, we turn to Pagán's second argument -- that,

in denying liquidated damages, the district court improperly found

that Walgreens acted in good faith and erred by failing to consider

whether Walgreens had reasonable grounds for believing Pagán's

termination to be lawful. We review the district court's decision

to deny liquidated damages for abuse of discretion. See Chao v.

Hotel Oasis, Inc., 493 F.3d 26, 35 (1st Cir. 2007) (reviewing

decision to award liquidated damages under the FLSA).7 However,

"we review the district court's factual findings related to good

faith and reasonableness for clear error." Id. (citing McLaughlin

v. Hogar San José, Inc., 865 F.2d 12, 14 (1st Cir. 1989)). As we

have explained, a clear error exists "only if, after considering

all the evidence, we are left with a definite and firm conviction

7
We may look to decisions interpreting the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. §§ 201-19, for guidance on the
liquidated damages provisions of the FMLA because "[the FMLA's]
enforcement scheme is modeled on the enforcement scheme of the FLSA
. . . [and] [t]he relief provided in the FMLA also parallels the
provisions of the FLSA." S. Rep. 103-3, at 35 (1993); see also
Frizzell v. Sw. Motor Freight, 154 F.3d 641, 644 (6th Cir. 1998)
("[T]he legislative history of the FMLA reveals that Congress
intended the remedial provisions of the FMLA to mirror those in the
FLSA."). The relevant portions of the FLSA's liquidated damages
provision are similar to the FMLA's: "if the employer shows to the
satisfaction of the court that [it acted] in good faith and that
[it] had reasonable grounds for believing that [its] act or
omission was not a violation of the [FLSA], the court may, in its
sound discretion, award no liquidated damages." 29 U.S.C. § 260.

-23-
that a mistake has been made." United States v. Brake, 666 F.3d

800, 804 (1st Cir. 2011).

"To establish good faith under the FMLA, a defendant must

show that 'it honestly intended to ascertain the dictates of the

FMLA and to act in conformance with it.'" Thom, 666 F.3d at 977

(quoting Hite v. Vermeer Mfg. Co., 446 F.3d 858, 868 (8th Cir.

2006)); see also Barfield v. N.Y. City Health & Hosp. Corp., 537

F.3d 132, 150 (2d Cir. 2008) (noting that good faith requires

"active steps to ascertain the dictates of the FLSA and then act to

comply with them" (internal quotation mark omitted)). Thus, an

employer will be liable for liquidated damages where it "'either

knew or showed reckless disregard for the matter of whether its

conduct was prohibited by the statute.'" Chao, 493 F.3d at 35

(quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133

(1988)). An employer may advance its good faith and reasonable

grounds showings by demonstrating that it sought legal advice about

its obligations under the FMLA. See Cooper v. Fulton Co., 458 F.3d

1282, 1287 (11th Cir. 2006) (finding no reasonable grounds for

believing termination lawful where employer failed to seek legal

advice); Hoffman v. Prof'l Med. Team, 394 F.3d 414, 419-20 (6th

Cir. 2005) (same). Additionally, the fact that an employer met

with an employee to determine eligibility for FMLA leave may be

indicative of good faith. See Hoffman, 394 F.3d at 419-20.

-24-
 Here, the transcript of the hearing on liquidated damages

belies Pagán's assertion that the court did not consider whether

Walgreens had reasonable grounds for believing its actions to be

lawful. In stating its decision, the court explained: "for

purposes of this motion at this time, . . . I understand Walgreens

acted with reasonable grounds." Furthermore, although the evidence

was mixed, the court's finding of good faith and reasonable grounds

was not so divorced from the evidence as to constitute clear error.

Figueroa consulted with a Walgreens attorney several

times to understand the company's legal obligations and obtain

guidance in how to proceed. Additionally, Figueroa's initial

letter to Pagán invited him to apply for disability leave. The

company reconsidered its termination decision after Pagán raised

the issue with a human resources supervisor. Perhaps most

significantly, there was ample evidence of communications

breakdowns at the Juana Díaz store that prevented Figueroa and the

other managers who made the decision to terminate Pagán from

learning of the facts of his hospitalization and absence in a

timely manner. For whatever reason, the medical certificate that

Pagán provided on May 17 was not passed along to Figueroa, nor was

Pagán's notice that he would be absent for another week on doctor-

ordered recuperative rest. Although it is undisputed that Figueroa

was aware of Pagán's initial visit to the emergency room, the court

could rely on this evidence to conclude that he did not know of the

-25-
full extent of Pagán's illness and was genuinely confused by

Pagán's two-week absence.

In short, given the high hurdle posed by the clear error

standard, Pagán's challenge to the court's findings is unavailing.

See United States v. Matos, 328 F.3d 34, 40 (1st Cir. 2003) (noting

that, although another fact-finder may have differed, where a

finding is plausible there is no clear error).

B. Renta-Bonilla's Article 1802 Claim

As noted, Pagán's wife, Ada Renta-Bonilla, brought a

claim in the same action under Puerto Rico's Article 1802, P.R.

Laws Ann. tit. 31, § 5141.8 Article 1802 is Puerto Rico's general

tort statute, providing that "[a] person who by an act or omission

causes damage to another through fault or negligence shall be

obliged to repair the damage so done." Id. The Supreme Court of

Puerto Rico has held that, in certain circumstances, relatives of

a person who has been the victim of workplace discrimination may

bring claims under Article 1802 to be compensated for any harm to

them resulting from the discrimination. Santini Rivera v. Serv.

Air, Inc., 137 P.R. Dec. 1; 1994 P.R.-Eng. 909,527 (P.R. 1994); see

also González Figueroa v. J.C. Penney P.R., Inc., 568 F.3d 313, 318

(1st Cir. 2009) (recognizing same). A relative's Article 1802

claim is derivative of the principal plaintiff's claim in that it

8
Renta's claim was also founded on Article 1803, which
applies the principle of respondeat superior to Article 1802 tort
claims. See P.R. Laws Ann. tit. 31, § 5142.

-26-
is premised on some harm to the principal plaintiff, and "if the

principal plaintiff's claim fails, so too does the relative's

derivative claim." González Figueroa, 568 F.3d at 320 (citing

Maldonado Rodríguez v. Banco Central Corp., 138 P.R. Dec. 268, 276

(P.R. 1995)); see also Rivera v. Centro Médico de Turabo, Inc., 575

F.3d 10, 24 (1st Cir. 2009) ("The cause of action is derivative and

depends on the viability of the underlying claim of the relative or

loved one."). Article 1802 claims brought by family members often

seek compensation for emotional harm, see Rivera, 575 F.3d at 24;

Santini Rivera, 137 P.R. Dec. at 11, as did Renta's claim in this

case.9

The district court granted summary judgment for Walgreens

on Renta's Article 1802 claim. It explained that both of Pagán's

claims, brought under Puerto Rico Law 80 and the FMLA, entitled a

successful plaintiff to recover only monetary losses and not

compensation for emotional distress. Therefore, it reasoned,

"[b]ecause the statutes which Pagán proceeds under do not provide

for an award of general damages, his wife is unable to derive a

claim for damages which he himself could not receive." The court

noted that another federal district court had previously reached

9
The Complaint states that Renta "suffered and will continue
to suffer emotional and financial damages." However, the
plaintiffs failed to plead any facts showing a financial harm to
Renta independent of that to her husband. The district court
treated Renta's Article 1802 claim as one seeking compensation for
only emotional distress, and we will follow its lead.

-27-
the same conclusion, but provided no other authority or explanation

for its decision. On appeal, Renta argues that this conclusion was

contrary to our decision in González Figueroa and that she was

entitled to recover for her emotional distress.

As an initial matter, we note that the court was correct

that a plaintiff may not recover damages for emotional distress

under the FMLA.10 See Nv. Dept. of Human Res. v. Hibbs, 538 U.S.

721, 739-40 (2003) ("[T]he cause of action under the FMLA is a

restricted one: The damages recoverable are strictly defined and

measured by actual monetary losses."). Thus, the question posed is

whether the relative of an aggrieved employee may recover damages

for emotional distress through a derivative Article 1802 claim

where the federal statute under which the aggrieved employee brings

his claim does not permit recovery for emotional distress.

Contrary to Renta's assertion, this question was not

answered by our decision in González Figueroa. That case presented

similar facts -- the family members of an alleged victim of

workplace discrimination brought claims under Article 1802 seeking

compensation for emotional distress and consequential damages.

However, our analysis was limited to whether these claims were

10
The same is true under Puerto Rico's Law 80. Soto-Lebron
v. Fed. Express Corp., 538 F.3d 45, 55 (1st Cir. 2008) ("A
wrongfully terminated employee cannot recover emotional distress
damages for the termination itself [under Law 80]." (citing Porto
v. Bentley P.R., Inc., 132 P.R. Dec. 331, 342 (1992))). However,
since Pagán voluntarily dismissed his Law 80 claim, we focus on the
FMLA claim here.

-28-
time-barred. At the outset, we explained that "[t]his appeal

requires us to consider the interplay between the statute of

limitations and the maintenance of derivative tort claims brought

by relatives of an age discrimination plaintiff," 568 F.3d at 316,

and our holding was limited to issues concerning the accrual and

potential tolling of the relatives' Article 1802 claims, id. at

321-23. It is true that the vehicle for the principal plaintiff's

claim, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-

34, does not provide for emotional distress damages, see Collazo v.

Nicholson, 535 F.3d 41, 44, 44 n.3 (1st Cir. 2008), but the issue

of whether the plaintiffs were entitled to emotional distress

damages in light of this fact was not before the court and was not

addressed by the decision. Accordingly, we will not treat González

Figueroa as having implicitly decided this issue of Puerto Rico

law.

Unfortunately, neither has the Supreme Court of Puerto

Rico decided the issue in any translated case identified by the

parties. In Santini Rivera, the court found that family members

could bring an Article 1802 claim in circumstances similar to those

here and identified the elements of such a claim: "(1) the

relatives have allegedly suffered a compensable moral (emotional)

harm; (2) the harm was caused by the employer's discriminatory

treatment of his employee . . . in such a way that the impact of

the discriminatory treatment received by [the employee] affects

-29-
[the relatives] and causes them harm; and (3) the employer

committed a tortious act." 137 P.R. Dec. at 11. The court

emphasized that the provision was based on general principles of

tort liability, explaining that "the sec. 1802 concept of fault is

infinitely embracing, as ample and embracing as human conduct is,"

id. at 8, and that it permitted recovery for "moral (emotional)

harm experienced by the persons related by blood ties or by

affection and love to the victim or aggrieved party," id. at 10.

While Santini Rivera's reading of Article 1802 is broad,

it is important to note that the principal claim from which the

relatives' claims derived was based on Puerto Rico's general

employment discrimination statute, P.R. Stat. Ann. tit. 29, § 146,

which itself permitted recovery for damages caused by emotional

distress. The court did not address the question of whether

Article 1802 provides a vehicle for a family member to recover

damages not available to the employee who suffered discrimination

directly, nor have the parties identified any subsequent decision

of the Supreme Court of Puerto Rico that has done so.11

11
In Santini Rivera, one Justice of the Supreme Court of
Puerto Rico, writing separately, noted that family members would
not be entitled to bring an Article 1802 claim where the principal
plaintiff's claim is under Puerto Rico's wrongful termination
statute, P.R. Stat. Ann. tit. 29, § 185. See Santini Rivera, 137
P.R. Dec. at 16. However, this proposition is narrowly addressed
to cases involving claims brought under that statute and does not
apply to cases in which the principal plaintiff's claim is brought
under another Puerto Rico statute or federal law. Regardless, this
statement in a separate opinion is not a statement of the court.

-30-
 Despite the broad reading of Article 1802 provided by

Santini Rivera, subsequent decisions of the United States District

Court for the District of Puerto Rico have not permitted family

members to recover emotional distress damages through a derivative

Article 1802 claim when the statute under which the individual

directly harmed brings his claim does not permit such damages.

In Barreto v. ITT World Directories, Inc., 62 F. Supp. 2d 387

(D.P.R. 1999), the court considered an Article 1802 claim brought

by the wife of an individual who alleged dismissal from his

employment because of his military status in violation of the

Uniformed Services Employment and Reemployment Rights Act of 1994

("USERRA"), 38 U.S.C. §§ 4301-35, and a similar Puerto Rico

statute, P.R. Laws Ann. tit. 25, §§ 2001-2093. Reasoning that

neither of these statutes permitted recovery of damages for

emotional distress, the court dismissed the wife's Article 1802

claim. The court did not provide an extensive explanation of its

decision, but simply noted that "it would be ludicrous for

plaintiff's spouse to be entitled to greater benefits than

[plaintiff] himself would be entitled to." Id. at 394.

Subsequently, other decisions of the district court have reached

the same conclusion regarding Article 1802 claims derived from a

violation of USERRA harming one's relative. See Rivera-Cartagena

v. Wal-Mart P.R., Inc., 767 F. Supp. 2d 310, 320 (D.P.R. 2011)

(quoting Barreto and dismissing spouse's Article 1802 claim);

-31-
Rivera-Melendez v. Pfizer Pharma., Inc., 747 F. Supp. 2d 336, 340-

41 (D.P.R. 2010) (citing Barreto and dismissing derivative Article

1802 claim brought by conjugal partnership).

However, these decisions by federal courts are not

authoritative statements of Puerto Rico law, and, as far as we can

tell, this question remains unresolved by the Supreme Court of

Puerto Rico. In light of this uncertainty, we will not encroach on

the prerogative of that court by resolving the question ourselves.

See VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 3 (1st

Cir. 1993) ("Absent controlling state court precedent, a federal

court sitting in diversity may certify a state law issue to the

state's highest court.").12 Of course, "even in the absence of

controlling precedent, certification would be inappropriate where

state law is sufficiently clear to allow us to predict its course."

Ropes & Gray LLP v. Jalbert (In Re Engage, Inc.), 544 F.3d 50, 53

(1st Cir. 2008). However, if "the existing case law does not

provide sufficient guidance to allow us reasonably to predict" how

the state's courts would resolve the question, the prudent course

is to certify the question to that court better suited to address

the issue. Id. at 57.

12
We do not sit in diversity, but rather exercise supplemental
jurisdiction over Renta's Article 1802 claim as it forms part of
the same case or controversy as her husband's FMLA claim. 28
U.S.C. § 1367. Still, it is proper that we exercise the same
reluctance to resolve unsettled questions of state law.

-32-
 We faced a similar issue concerning the scope of Article

1802 in Muñiz-Olivari v. Stiefel Laboratories, Inc., 496 F.3d 29

(1st Cir. 2007). In that case, a former employee and his wife

filed a breach of contract suit against the former employer, and

both the former employee and his wife sought damages for pain and

suffering related to the breach of contract under Article 1802.

The appeal required resolution of two unresolved issues of Puerto

Rico law: 1) whether a plaintiff could recover damages for pain and

suffering in a civil action for breach of contract that involved no

claim of violation of anti-discrimination or civil rights laws, and

2) whether such a plaintiff's family member, who is not a party to

the contract, could recover pain and suffering damages. Id. at 39-

40. We decided that the best course was to certify the questions

to the Puerto Rico Supreme Court. That is true here as well.13

This issue as to the scope of Article 1802 presents an

important question of Puerto Rico law having broad implications on

the availability of damages in a federal forum for plaintiffs in

Puerto Rico. See In Re Engage, Inc., 544 F.3d at 57 (finding

certification appropriate where resolution of state law issues

"clearly ha[s] implications which go beyond these parties"). On

13
The Puerto Rico Supreme Court answered both questions in the
affirmative. Muñiz-Olivari v. Stiefel Labs., Inc., 174 P.R. Dec.
813 (2008). Unfortunately, other than offering another example of
how broadly Article 1802 is construed, this discussion provides
little indication as to how it would resolve the issue before us
now.

-33-
the one hand, vacating the decision of the district court and

allowing Renta's claim to proceed extends Article 1802 beyond the

scope previously recognized by Puerto Rico courts. See Hatch v.

Trail King Indus. Inc., 656 F.3d 59, 70 (1st Cir. 2011) ("[W]e, as

a federal court, have no warrant to extend state . . . law"). On

the other hand, this is a question which recurs frequently and

which would benefit from a definitive answer. For that reason, we

choose to certify.

IV.

For the reasons described, we affirm the judgment of the

district court in all respects, save its decision to reject Renta's

Article 1802 claim. We certify to the Supreme Court of Puerto Rico

the questions posed by that claim: 1) When an employee's Article

1802 claim is barred because there is a specific federal statutory

employment claim, here the FMLA, does the spouse of the employee

nevertheless have a cause of action for emotional distress damages

under Article 1802 when such relief is not available to the

employee under federal law? 2) Does the answer to this question

vary depending upon the nature of the underlying federal employment

claim? If so, what are the factors to be considered?

The clerk of this court is directed to forward to the

Supreme Court of Puerto Rico, under the official seal of this

court, a copy of the certified questions and this opinion, along

-34-
with a copy of the briefs and appendices filed by the parties. We

retain jurisdiction pending that court's determination.

So ordered.

-35-