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Franzen v. Ellis Corp.

September 10, 2008


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 641- M artin C. Ashman, Magistrate Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge


Before FLAUM, RIPPLE and ROVNER, Circuit Judges.

On January 29, 2003, Richard Franzen filed a complaint against Ellis Corporation ("Ellis"), his former employer. He alleged, inter alia, that Ellis had interfered unlawfully with his right to take medical leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615(a)(1), and had discriminated against him for taking leave, in violation of 29 U.S.C. § 2615(a)(2). Upon motion of Ellis, the trial was bifurcated into liability and damages phases. A jury heard evidence on the issue of liability and rendered a verdict in favor of Mr. Franzen. The district court then held a bench trial on the issue of damages. It found that Mr. Franzen was not entitled to any damages; therefore, it also refused to grant Mr. Franzen's request for attorneys' fees. For the reasons set forth in this opinion, we affirm the judgment of the district court.



Ellis Corporation employed Mr. Franzen as a mechanical engineer from 1999 until mid-2002. At the end of April 2002, Mr. Franzen was seriously injured in an automobile accident. On May 2, 2002, he called Jennifer Ruffolo, Ellis' Human Resources Manager, and informed her that he had been injured and was unsure when he would be able to return to work. During this conversation, Ms. Ruffolo requested that he provide her with a doctor's note in order to establish his eligibility to receive FMLA leave and short-term disability benefits.

On May 11, 2002, Mr. Franzen received in the mail a packet that contained a number of forms, including a medical certification form. Ellis employees were required to complete this paperwork in order to receive short-term disability and FMLA benefits. The forms stated that Mr. Franzen had fifteen days from the date of receipt to return the paperwork or his absences would be con- sidered unexcused and he would not be entitled to these benefits. His paperwork, including his medical certification form, therefore was due to the company no later than May 28, 2002.*fn1

After Mr. Franzen's conversation with Ms. Ruffolo, Ellis began paying Mr. Franzen short-term disability benefits in anticipation of receiving proper medical documentation. Nevertheless, Ellis claimed that, despite numerous calls informing him of the necessity of the documentation and the consequences of not sending it in a timely fashion, it did not receive the proper medical certification from Mr. Franzen by May 28, 2002. Accordingly, on May 28, 2002, Ellis denied Mr. Franzen's request for FMLA leave.

Because Mr. Franzen's request for FMLA leave had been denied, his absences from April 23 through May 28 were considered unexcused. Ellis therefore terminated Mr. Franzen's employment on May 28, 2002, under the terms of its Attendance and Punctuality policy. That day, Ellis sent Mr. Franzen a letter notifying him that both his short-term disability benefits and his employment had been terminated because of his unexcused absences.


Complaining of severe back pain, Mr. Franzen made numerous visits to physicians in the weeks after his accident. When conservative treatment failed, he visited Dr. Avi Bernstein, an orthopedic surgeon. On June 13, 2002, Dr. Bernstein issued Mr. Franzen a doctor's note stating that he was temporarily disabled and unable to work until further notice.

In July 2002, Dr. Bernstein performed surgery to repair Mr. Franzen's spine. Although the surgery was successful from a medical standpoint, Mr. Franzen still complained of severe pain in the months that followed. On December 9, 2002, in connection with Mr. Franzen's application for Social Security benefits, Dr. Bernstein offered his medical opinion that Mr. Franzen was permanently and totally disabled and that he therefore could not return to any of his prior work activity or any other work. At no time since his discharge from Ellis did Mr. Franzen seek alternate employment.


In January 2003, Mr. Franzen filed a complaint in the United States District Court for the Northern District of Illinois, alleging that Ellis had interfered unlawfully with the exercise of his FMLA rights under 29 U.S.C. § 2615(a)(1). He also alleged that Ellis had discriminated against him in violation of 29 U.S.C. § 2615(a)(2), breached his employment contract by failing to provide short-term disability benefits, and violated a state law that prohibits retaliatory discharge.

Ellis moved for summary judgment on all claims. The district court dismissed both the contract claim and the retaliatory discharge claim on summary judgment, and Mr. Franzen did not challenge this decision. The district court denied Ellis' summary judgment motion on the FMLA claims. It held that a question of fact existed as to whether Mr. Franzen had supplied Ellis with the requisite documentation necessary for his receipt of FMLA leave.

Ellis then moved to bifurcate the trial on the FMLA claims into separate liability and damages phases. Before the district court could rule on this motion, however, both parties consented to the exercise of jurisdiction by a United States magistrate judge. Upon reassignment to that judicial officer, the motion to bifurcate was granted.

In April 2006, a jury trial was held on the issue of liability. The sole issue of fact litigated before the jury was whether Ellis had received the requisite medical documentation from Mr. Franzen prior to May 28, 2002. If it had not received the requisite documentation, Mr. Franzen was not entitled to FMLA protection. If it had, however, then its termination of Mr. Franzen's employment was in violation of the FMLA.

In support of his contention that Ellis in fact had received his physician's note prior to the deadline, Mr. Franzen presented the testimony of Tamara Herman, a secretary at his doctor's office.*fn2 Ms. Herman testified that, at least three times prior to May 28, she had faxed to Ellis' Human Resources Department a note from Mr. Franzen's physician, Dr. Konowitz, stating that he was temporarily unable to return to work.*fn3 In its defense, Ellis introduced testimony from Ms. Ruffolo, its Human Resources Manager. Ms. Ruffolo testified that she had not received the necessary documentation from Mr. Franzen before May 28, 2002, despite numerous phone calls informing him that she needed to receive it by that date. Specifically, she denied having received any fax from Dr. Konowitz's office prior to May 28.

At the conclusion of the trial, the jury was given the following interrogatory:

Did Plaintiff prove by a preponderance of the evidence that Defendant received the requested medical documentation by May 28, 2002? If you answer yes, then you are finding in favor of the Plaintiff. If your answer is no, then you are finding in favor of the defendant.

Tr. at 72. After deliberation, the jury answered "yes," finding in favor of the plaintiff. Id. On April 20, 2006, the court entered the following docket entry: "Jury returns its verdict in favor of plaintiff Richard Franzen and against Ellis Corporation as to liability only." R.188.

The district court then held a bench trial to determine the appropriate amount of damages. Mr. Franzen sought nearly $1 million in back pay and front pay, contending that he would have been able to work and earn wages from May 28, 2002 (the date of his discharge) through the time of his planned retirement at age 65.

In response, Ellis presented evidence that Mr. Franzen was either unwilling or unable to return to work at any time after his accident. It pointed to Mr. Franzen's prior deposition statements in which he admitted that he was totally incapacitated and unable to work at all times after his accident. Ellis also presented testimony from Dr. Bernstein, the surgeon who had performed spinal surgery on Mr. Franzen in July 2002. He stated that Mr. Franzen was permanently disabled and unable to return to work as of at least June 2002. Ellis noted that Mr. Franzen had refused to appear for depositions during discovery because he had claimed to have been too ill to attend.*fn4 Finally, Ellis contended that, if the court found Mr. Franzen's argument that he was able to return to work immediately after his discharge to be credible, then he was barred from recovery because he had failed to mitigate his damages by seeking alternate employment.

On April 3, 2007, the district court concluded that Mr. Franzen had not proven that he was entitled to any dam-ages. It stated in open court that "it is extremely clear that the plaintiff was unable to work from the time of his accident," R.279 at 28, and that, even if Mr. Franzen had been physically able to work, "there is no evidence that he mitigated his damages . . . he never tried to work," R.279 at 30. The court therefore entered the following minute order:

The court finds that there are no damages that have been proven to this court, and therefore, the amount of damages is zero. There being no damages this case is dismissed with prejudice. . . . There are no attorneys' fees available where the defendant has ...

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