The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is (1) Defendant City of Chicago's (hereinafter, the "Defendant") Renewed Motion for Judgment as a Matter of Law or, in the Alternative, a New Trial; (2) Plaintiff Gladys Alcazar-Anselmo's (hereinafter, the "Plaintiff") Motion for Prejudgment Interest, Liquidated Damages, and Post-Judgment Interest; and (3) Plaintiff's Attorneys' Fees Petition.
This case involves Plaintiff's claim that Defendant violated the Family Medical Leave Act of 1993 (the "FMLA") by interfering with her rights to take medical leave as well as firing her in retaliation for requesting medical leave. The trial for this case began on March 14, 2011. At the close of Plaintiff's case, Defendant moved for judgment as a matter of law, arguing that Plaintiff did not present evidence that she was denied substantive FMLA rights or that she had a serious health condition that would qualify her for FMLA leave. The Court denied this motion. The jury subsequently ruled in favor of Plaintiff on her retaliation claim and in favor of Defendant on the interference claim. These motions followed.
A. Defendant's Renewed Motion for Judgment as a Matter of Law or a New Trial
1. Judgment as a Matter of Law
In ruling on Defendant's Rule 50(b) renewed motion for judgment as a matter of law, the Court determines "whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in the light most favorable" to Plaintiff. Mathur v. Bd. of Trs. of S. Ill. Univ., 207 F.3d 938, 941 (7th Cir. 2000). The Court assesses "whether no rational jury could have found for the plaintiff." Id.
Defendant argues that judgment as a matter of law is warranted because Plaintiff did not establish that she suffered from the requisite serious health condition. See Kaufman v. Fed. Express Corp., 426 F.3d 880, 886--87 (7th Cir. 2005). A serious health condition under the FMLA is "an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611. Continuing treatment is defined as:
A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves: (1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or (2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider. 29 C.F.R. § 825.114(a)(the FMLA citation applicable to this case, as the cause of action accrued prior to the FMLA amendment on January 15, 2009). It is a question of law if an employee suffers from a serious health condition. See Bell v. Jewel Food Store, 83 F.Supp.2d 951, 958 (N.D. Ill. 2000).
Plaintiff was morbidly obese, which led to serious health issues. She underwent gastric bypass surgery on January 19, 2006, which resulted in her losing more than 150 pounds in one year. This rapid weight loss created excess skin that hung from Plaintiff's arms and abdomen. In his deposition read at trial, Dr. John Polley, the plastic surgeon who removed this skin, testified that the skin removal was medically necessary, as the excess skin could compromise the skin's integrity and lead to serious infections, rashes, and hygiene issues. Plaintiff first met with Dr. Polley on February 1, 2007, yet waited until May 3, 2007, to have the surgery - an accommodation to both Dr. Polley's and Plaintiff's schedules. This delay does not show, however, that this excess skin was not problematic for Plaintiff. Defendant argues that the excess skin did not create an actual serious medical condition, but only the potential for such a condition to develop. FMLA leave is determined not by a potential serious condition, but rather the gravity of the condition at the time of the request for leave. See Phillips v. Quebecor World RAI, Inc., No. 04-C-330, 2005 WL 6126702, at *6 (E.D. Wis. Aug. 16, 2005).
There does not appear to be a dispute that Plaintiff's gastric bypass surgery was medically necessary. Trial testimony via deposition from both Dr. Polley and Dr. James Madura, the doctor who performed Plaintiff's gastric bypass surgery, established that the continuing treatment from the gastric bypass could include a skin removal procedure. Plaintiff's skin did not tighten anywhere near to its original state after her extreme weight loss, which led to a condition that a person would not be reasonably expected to live with if a remedy exists. Such a remedy was the plastic surgery, which required Plaintiff to be incapacitated for more than three days. The Court already determined that the excess skin was a serious medical condition that qualified Plaintiff for FMLA leave. See Trial Tr. 548:2--4, Mar. 16, 2011. It will not disturb this decision. Accordingly, Defendant's Renewed Motion is denied.
Defendant next argues that improper jury instructions created prejudice against it that necessitates a new trial. It argues that because the Court gave the jury a mixed-motive instruction on the retaliation claim, the failure to include an instruction with Defendant's affirmative defense that would eliminate its damages was a legal error that taints the jury's verdict. "A new trial may be granted if the verdict is against the clear weight of the evidence or the trial was unfair to the moving party." David v. Caterpillar, Inc., 324 F.3d 851, 863 (7th Cir. 2003). One is warranted if Defendant can show that the allegedly improper jury instructions (1) inadequately stated the law and (2) "likely confused or misled the jury causing prejudice to [Defendant]." Gile v. United Airlines, Inc., 213 F.3d 365, 374--75 (7th Cir. 2000).
The Court provided the following instruction that is the subject of Defendant's motion: "Plaintiff does not have to prove that Plaintiff's FMLA-protected activity is the only reason Defendant terminated her." Trial Tr. 940:25--941:2, Mar. 17, 2011.
As an initial matter, Defendant did not specifically object to the absence of an affirmative defense instruction in writing or during the jury instruction conference that occurred on the record. Such an objection would have provided notice of the allegedly erroneous instruction, and eliminated the need for this motion and the potential for retrial. See Chestnut v. Hall, 284 F.3d 816, 819 (7th Cir. 2002). This failure, however, does not necessarily waive this argument as a ground for a new trial. Prior to the 2003 amendment to Federal Rule of Civil Procedure 51, Defendant's failure to raise this issue prior to the Court charging the jury with its instructions would have constituted a waiver. The Court is inclined to rule that Defendant has waived this argument, as Defendant knew - or should have known - of this potential flaw in the instructions before they were read to the jury. Defendant cannot keep an unused arrow in its quiver to use post-trial if the jury rules against it. However, during trial Defendant did raise objections to the instructions that were related to the argument it now makes. Rule 51(d)(2) allows for a limited, discretionary, and plain error review of jury instructions. See Higbee v. Sentry Ins. Co., 440 F.3d 408, 409 (7th Cir. 2006). As such, the Court will consider Defendant's objection to the instructions, and looks at them as a whole to "determine whether those instructions completely and accurately informed the jury of the relevant legal principles." Ammons-Lewis v. Metro. Water Reclamation Dist. of Greater Chicago, 488 F.3d 739, 751 (7th Cir. 2007).
Turning to Defendant's motion, the Court finds that a mixed-motive instruction was warranted on Plaintiff's retaliation claim. See Goezler v. Sheboygan Cnty., Wis., 604 F.3d 987, 995 (7th Cir. 2010). No pattern instructions exist in this circuit for FMLA cases. Proposed instructions exist, yet they do not address the issue before the Court, as they include a "but for" instruction on a retaliation claim. Proposed FMLA Pattern Jury I n s t r u c t i o n s , http://www.ca7.uscourts.gov/Pattern_Jury_Instr/pattern_FMLA_jur y_instr.pdf (last visited July 14, 2011). Public comment on these instructions ended on June 30, 2008, before the holding in Goelzer.
The elements of an FMLA retaliation claim are the same as an ADA or Title VII retaliation claim. See Burnett v. LFW, Inc., 472 F.3d 471, 481 n.5 (7th Cir. 2006). The Committee Comment for the pattern employment discrimination instructions includes a recommended instruction for a mixed motive case:
Plaintiff must prove by a preponderance of the evidence that [her] [protected class] was a motivating factor in Defendant's decision to [adverse employment action] [her]. A motivating factor is ...