[00:00:10] Speaker 01:
Counsel for Appellant, please approach and proceed.

[00:00:21] Speaker 00:
May it please the Court and good morning, Your Honors.

[00:00:23] Speaker 00:
My name is Dan Bonet.

[00:00:24] Speaker 00:
I represent the Appellant, Kendra Reitzel.

[00:00:28] Speaker 00:
I'd like to thank the Court for hearing an argument on this case.

[00:00:31] Speaker 00:
There are multiple issues that were raised in this appeal.

[00:00:35] Speaker 00:
Two, we contend have substantial significance to the employment bar well beyond the parameters of this case and they are the mitigation issue and the attorney's fees issues under the FMLA.

[00:00:49] Speaker 00:
The remaining issues on compound interest and application of the discount rate, fringe benefits and equitable are equally important but given the allotted time, I will reserve comment on that unless the court has specific questions.

[00:01:03] Speaker 00:
It's our position on the mitigation issue that the circuit needs to make clear that the standard here in this case for voluntary resignations for a post-employment resignation, in this case after the plaintiff left Funding World Capital, is not a hard stop.

[00:01:22] Speaker 00:
It's not a per se standing alone basis to cut off back pay.

[00:01:27] Speaker 00:
There are cases that talk about the fact that one size fits all.

[00:01:32] Speaker 00:
is not the appropriate standard.

[00:01:34] Speaker 00:
If that is the standard in the Ninth Circuit, we ask the court to overturn it because it's too draconian.

[00:01:39] Speaker 00:
There are bases for which an employee who leaves post-determination employment has reasons.

[00:01:47] Speaker 00:
And those reasons were enumerated here in detail during the course of the trial.

[00:01:53] Speaker 01:
How would we write that?

[00:01:54] Speaker 01:
What would we say in terms of how a court is supposed to determine

[00:02:01] Speaker 01:
when the mitigation efforts are not satisfactory.

[00:02:07] Speaker 01:
How would we gauge that then if we don't have a hard stop rule?

[00:02:11] Speaker 00:
I've given a lot of thought to that and I wish I had a bullet answer, but I think it's important here to keep in mind that when you look at this through the lens of the overall burden on the defendant to prove mitigation, then we can then perhaps parse what happens.

[00:02:29] Speaker 00:
somewhat similar to a McDonnell Douglas Burdine shifting perhaps, there has to be some reason stated by the point of why she left.

[00:02:37] Speaker 00:
And here she stated a number of reasons why she left.

[00:02:41] Speaker 00:
Once that happens, once that standard is articulated, then the burden should shift to the party that has the ultimate burden on mitigation to present evidence in the record why that's not sufficient, why that's not sufficient justification.

[00:02:55] Speaker 00:
And here, there was none.

[00:02:57] Speaker 00:
They didn't challenge her Crohn's disease.

[00:03:00] Speaker 00:
They didn't challenge her obligation that she couldn't pay her bills.

[00:03:03] Speaker 00:
They didn't put on any evidence that getting to work was more difficult or more onerous.

[00:03:09] Speaker 00:
None of the evidence... I thought the court... Can I ask a clarifying question?

[00:03:13] Speaker 02:
I thought the court did take those pieces of evidence into account.

[00:03:18] Speaker 02:
So I didn't see it as a per se rule being applied.

[00:03:21] Speaker 02:
Can you explain to me why I'm wrong?

[00:03:24] Speaker 00:
Well, I think you're...

[00:03:25] Speaker 00:
You're wrong.

[00:03:26] Speaker 00:
I think you're correct that the court addressed them.

[00:03:29] Speaker 00:
I think the problem was that that was based on no real evidence that was in the record.

[00:03:35] Speaker 00:
It was based on assumptions, speculations, conjectures that maybe those weren't good enough reasons, but there was no hard evidence to support that.

[00:03:44] Speaker 00:
And the law in this district, and I'm sorry, in this circuit is, as it is in other circuits, that suppositions, conjectures, speculation alone are insufficient to support

[00:03:55] Speaker 00:
any kind of a finding, even one that's made in this case by the trial factor was the district court.

[00:04:02] Speaker 00:
If the defendants had put on evidence that, hey, you know, here's the bus routes, here's the time the bus runs, or yeah, you really didn't have any problem paying your bills, did you, because you never got taken to court, then maybe that's a different analysis.

[00:04:16] Speaker 00:
But there was nothing in the record to support any of that.

[00:04:20] Speaker 00:
It was all basically coming to the conclusion that, well, probably just shouldn't have left that job despite the fact that there were justifiable reasons for doing so.

[00:04:30] Speaker 00:
And I think that leads us to sort of the next part of this analysis is then what happens when that happens?

[00:04:38] Speaker 00:
Does it cut off all damages, all back pay?

[00:04:43] Speaker 00:
Miss Reitzel was out of work for six weeks.

[00:04:45] Speaker 00:
She spent that six weeks looking for another job.

[00:04:47] Speaker 03:
That's my problem, counsel.

[00:04:49] Speaker 03:
If we go the other way, the rules the other way would be also ridiculous because she said she needed a place that she could walk to.

[00:04:56] Speaker 03:
Sure.

[00:04:57] Speaker 03:
I mean, that can't be a rule that you can only demand jobs that you can walk to, right?

[00:05:02] Speaker 00:
That is a single piece of her justification.

[00:05:05] Speaker 00:
There were seven or eight reasons she gave that need to be looked at in their totality.

[00:05:09] Speaker 03:
I agree, but the bottom line is there shouldn't be any bright round rules either way.

[00:05:14] Speaker 00:
No, I think you're correct.

[00:05:16] Speaker 00:
It requires, as the district court, in this case Judge Siller in the Finnacle case that we cite, which cites EEOC versus paper lift, says you have to look at this as the unique and special circumstances for that particular plaintiff.

[00:05:31] Speaker 00:
Again, if the defendants didn't like and didn't believe that any of those were valid reasons, then the burden was on them to put that evidence on.

[00:05:40] Speaker 00:
And the record doesn't have anything to challenge that.

[00:05:42] Speaker 03:
Well, what about that reason about you need a job that she could walk to?

[00:05:45] Speaker 03:
That doesn't seem like a legitimate reason.

[00:05:48] Speaker 00:
If that were the only reason, if that were the only reason, then that might be problematic.

[00:05:52] Speaker 00:
But she doesn't have a driver's license.

[00:05:53] Speaker 00:
She doesn't own a car.

[00:05:55] Speaker 00:
There was no testimony.

[00:05:56] Speaker 00:
that a bus ran in front of her house every day at nine o'clock, eight times a day.

[00:06:01] Speaker 00:
For all we know, it maybe only came on Sunday.

[00:06:04] Speaker 00:
We don't know that, and the point is that's not her burden.

[00:06:07] Speaker 00:
That's the defendant's burden to put on that evidence, and they didn't do it.

[00:06:10] Speaker 02:
Can I ask counsel, one of the concerns that came up for me was it seemed as if the back pay and the front pay analysis ended up merging in the sense that the failure to look for another job after, is it FWC?

[00:06:24] Speaker 02:
Yes.

[00:06:25] Speaker 02:
Foreclosed both back pay, you know, from the cutoff after December, as well as the front pay claim.

[00:06:33] Speaker 02:
problem with the district court merging those two analyses together?

[00:06:37] Speaker 02:
Was the court supposed to apply it definitely?

[00:06:40] Speaker 00:
There was confusion, Your Honor, and I think the confusion stemmed from the fact that Dr. Bueller performed his analysis on front pay calculations two years before the trial was held.

[00:06:52] Speaker 00:
So front pay had migrated into back pay by that time.

[00:06:55] Speaker 00:
And when the judge was looking at and considering that testimony, then what was happening at that point in time was

[00:07:03] Speaker 00:
confusion, I think, because he was looking at the equity of front pay and whether or not that was an appropriate remedy as opposed to reinstatement, which I think the parties conceded under their circumstances, probably not appropriate.

[00:07:15] Speaker 00:
But that portion of front pay for those two years had migrated into back pay, which was the problem with applying a discount factor to it, first of all.

[00:07:24] Speaker 00:
Secondly, I think when we get to the point of the offset, you know, what is the offset?

[00:07:29] Speaker 00:
Ms.

[00:07:29] Speaker 00:
Reitzel was not asking that

[00:07:32] Speaker 00:
She got 100% of the concentric lost benefits for those six weeks.

[00:07:36] Speaker 00:
She said, look, the only thing we know here is how much I was getting paid at funding well capital.

[00:07:41] Speaker 00:
That we know.

[00:07:41] Speaker 00:
And so set that off and extrapolate that going forward until there's some other evidence.

[00:07:47] Speaker 00:
Again, that's not her burden.

[00:07:49] Speaker 00:
Burden's on the defendant to put on that evidence.

[00:07:52] Speaker 00:
So I think, again, in summary, I think we just think it's too draconian to have a hard and fast rule by itself when you leave.

[00:08:01] Speaker 00:
you have no right to back pay at all.

[00:08:04] Speaker 03:
Can I ask on that question, the discount rate, given this confusion, can we say it was abuse of discretion that the district court didn't properly do that discount rate, given it seems like all sides were confused by that, right?

[00:08:16] Speaker 00:
I think we would say it's clear error.

[00:08:18] Speaker 00:
I think it's clear error for two reasons.

[00:08:20] Speaker 00:
I think it's clear error on the fact that the statute specifically talks about

[00:08:24] Speaker 00:
In fact, the Ninth Circuit model and jury instructions talk about application of a discount rate and under what circumstances it applies for future benefits.

[00:08:33] Speaker 00:
Again, I think part of the confusion stemmed from the passage of time between Dr. Bueller's report and when the trial actually took place.

[00:08:41] Speaker 00:
I'd like to talk briefly about the attorney's fees issue because I think it's equally significant here.

[00:08:47] Speaker 00:
When you have a statute like 2617 that talks about paying attorney's fees,

[00:08:54] Speaker 00:
they shall be paid in addition to the amount that is set forth.

[00:08:59] Speaker 00:
That language is unique to the fee-shifting provisions under Title 29.

[00:09:04] Speaker 00:
It doesn't appear in Section 1988 under Title 42.

[00:09:10] Speaker 00:
Congress must have had a reason to put that phrase in there, and I think the cases talk about the justification for looking at fees given the circumstances of making whole a plaintiff

[00:09:22] Speaker 00:
who loses her income in the employment context, whether it's the FMLA or the FLSA or the ADEA, all under Title 29, and why that standard should be the one that Judge Easterbrook discussed at length in the cuff case, which we cite.

[00:09:41] Speaker 00:
It really makes sense to not look at the disparity between the amount that's in controversy and

[00:09:48] Speaker 00:
frankly, the amount that's recovered versus what was necessary to generate that result.

[00:09:55] Speaker 00:
And again, cutting off attorney's fees as of the date of the trial, we think, was an abusive discretion for the reasons we discussed in our brief about this was not an offer that was made pursuant to Rule 68.

[00:10:06] Speaker 00:
It was an offer that was made on the eve of trial.

[00:10:10] Speaker 00:
It did not begin to cover the

[00:10:14] Speaker 00:
attorney's fees and costs that accrued to that date.

[00:10:16] Speaker 00:
Our Ferkey case that we cite is directly on point about why that offer was of no value to Ms.

[00:10:21] Speaker 00:
Wrightsell at that point in time.

[00:10:23] Speaker 00:
So we asked the court to basically not to be- Counsel, so that statute says it's about reasonable attorney's fees.

[00:10:30] Speaker 03:
And so why isn't it reasonable to say if you unjustifiably prolong litigation, you shouldn't be paid for it?

[00:10:36] Speaker 00:
Well, that's the rub.

[00:10:39] Speaker 00:
It wasn't unjustifiably prolonging litigation.

[00:10:43] Speaker 00:
The record reflects very clearly that we had reached out to the defendant from the very beginning of this case to my declaration that appears in the record of our efforts to get an offer.

[00:10:53] Speaker 00:
And we didn't get any offer until basically the eve of the first trial before it was moved.

[00:10:58] Speaker 01:
Right, but why couldn't the district court take into account in any event the settlement offer

[00:11:04] Speaker 01:
in determining what fees were reasonable.

[00:11:06] Speaker 01:
There's nothing that precludes the district court from considering that, is there?

[00:11:10] Speaker 00:
It can consider it.

[00:11:11] Speaker 00:
But again, I think to the extent that it used it as a hard stop to cut off all fees, including the fees occurred during the course of the trial itself that resulted in plaintiff getting liquidated damages, we think is an abuse of discretion.

[00:11:27] Speaker 00:
I'd like to reserve the remainder of my time.

[00:11:28] Speaker 01:
All right.

[00:11:28] Speaker 01:
Thank you, counsel.

[00:11:43] Speaker 04:
Good morning, Your Honors.

[00:11:45] Speaker 04:
My name is Aaron Duell.

[00:11:46] Speaker 04:
I represent the Apple Ease, Concentric Healthcare Solutions, and Kyle Silk.

[00:11:51] Speaker 04:
I'd like to begin with the mitigation issue.

[00:11:54] Speaker 04:
Ms.

[00:11:54] Speaker 04:
Wrightsell asks to be compensated like an account manager at Concentric when she chose to work as a server and bartender at Clancy's Pub.

[00:12:04] Speaker 04:
Awarding Ms.

[00:12:05] Speaker 04:
Wrightsell any damages after she voluntarily left substantially equivalent employment at Fundingwell Capital would be inconsistent with the compensatory aims of the Family and Medical Leave Act.

[00:12:15] Speaker 01:
Well, Counsel, was that position consistent, consistently, was it consistent with the one she had before?

[00:12:23] Speaker 01:
Was it equivalent?

[00:12:25] Speaker 04:
It was substantially equivalent, Your Honor.

[00:12:29] Speaker 01:
Why is that so based on the justification she gave for not remaining at that position?

[00:12:34] Speaker 04:
Well, First, Your Honor, I would like to note that that substantial equivalent employment is not challenged by Ms.

[00:12:42] Speaker 04:
Wright's on this case.

[00:12:43] Speaker 01:
But the whole mitigation inquiry is whether or not the justifications that she gave for not remaining at that employment

[00:12:54] Speaker 01:
allows for her to continue to receive benefits.

[00:12:58] Speaker 04:
Yes, Your Honor.

[00:12:59] Speaker 04:
This circuit has affirmed a district court's finding that a job is substantially equivalent when it's comparable.

[00:13:07] Speaker 04:
And in this case, the district court found that there were many similarities between funding well capital job and her job at Concentric, including job title, base pay, responsibilities, and commission availability.

[00:13:23] Speaker 04:
I'd also like to address the argument that the appellees are seeking a per se rule.

[00:13:32] Speaker 04:
That's not the case.

[00:13:33] Speaker 04:
And the district court didn't find that a per se rule was appropriate.

[00:13:39] Speaker 04:
For example, if Ms.

[00:13:41] Speaker 04:
Reisel would have obtained another substantially equivalent job after she left funding well capital, then perhaps she would be entitled to back pay again.

[00:13:51] Speaker 04:
But those aren't the facts of this case.

[00:13:52] Speaker 04:
Ms.

[00:13:53] Speaker 04:
Reitzel stated that she left funding well capital.

[00:13:55] Speaker 04:
The court found that she didn't have a sufficiently good reason for that.

[00:14:00] Speaker 04:
And she stated that she knew that she would be unemployed for a period of time when she left funding well capital.

[00:14:07] Speaker 04:
She stated that she looked for any job, specifically any job that looked interesting.

[00:14:13] Speaker 04:
to her and that was potentially within walking distance.

[00:14:16] Speaker 04:
And once she obtained the job at Clancy's, she testified that she no longer looked for any employment whatsoever after that.

[00:14:29] Speaker 02:
Well, Counsel, can we take off one thing?

[00:14:31] Speaker 02:
Wasn't there a clear error in applying a discount rate to back pay?

[00:14:36] Speaker 04:
No, Your Honor, because the district court didn't find that a discount rate is necessarily appropriate as a matter of law to back wages.

[00:14:47] Speaker 04:
The district court was determining damages as the fact finder.

[00:14:51] Speaker 04:
And the record shows that a reasonable fact finder could have understood Dr. Bueller to be testifying that it was appropriate to apply a 1.5% discount rate to Ms.

[00:15:07] Speaker 04:
Wright's back wages in 2018.

[00:15:09] Speaker 04:
How?

[00:15:10] Speaker 01:
What was the language that would support that conclusion?

[00:15:15] Speaker 01:
What's the language?

[00:15:16] Speaker 04:
It was actually an exhibit that was admitted by plaintiffs.

[00:15:20] Speaker 04:
It was a chart.

[00:15:21] Speaker 04:
created by Dr. Bueller that had a column that stated discounted at 1.5 percent.

[00:15:28] Speaker 02:
But he was referring to front pay in those columns, not back pay.

[00:15:32] Speaker 02:
And I think there's a part of the – I mean, this might stem from the confusion that the council was alluding to, but it just doesn't make sense to me, at least, that a discount rate should be applied to back pay when it's a forward-looking present value of a future earnings type of calculation.

[00:15:50] Speaker 04:
And I understand that it's not typical to apply a discount rate to back pay.

[00:15:56] Speaker 02:
As I stated- Is there any case that you can cite in which a court has applied a discount rate to back pay?

[00:16:02] Speaker 04:
I don't have a specific case.

[00:16:04] Speaker 04:
I can only rest on the fact that the district court understood Dr. Bueller's testimony and the chart that was admitted into evidence.

[00:16:13] Speaker 04:
He understood it to be applying a discount rate of 1.5% to her wages in 2018.

[00:16:21] Speaker 01:
What about the award of interest until the date of judgment rather than one year?

[00:16:27] Speaker 01:
Was that a correct ruling by the district court?

[00:16:31] Speaker 04:
The FMLA requires interest to be calculated at the prevailing rate.

[00:16:36] Speaker 04:
It doesn't state anything about whether interest is compounding simple or the time up until it should be calculated.

[00:16:46] Speaker 04:
On that issue, Your Honor, again,

[00:16:50] Speaker 04:
We don't believe that plaintiffs made it clear to the district court as the finder of fact how that interest should have been calculated.

[00:16:58] Speaker 04:
And so the district court engaged in its best efforts to calculate that based off of the record that it had in front of it.

[00:17:09] Speaker 03:
So my issue was the equitable relief, the injunctive relief.

[00:17:14] Speaker 03:
Given that there was some evidence that the company reached out to right sales other employers, why wouldn't it have been appropriate to issue an injunction against making sure that her record is wiped clean?

[00:17:32] Speaker 04:
I don't believe that there was evidence that Concentric reached out to her subsequent employers.

[00:17:37] Speaker 03:
Isn't there something about someone in health care and Concentric reaching out to someone about

[00:17:43] Speaker 03:
in her employment or something like that?

[00:17:45] Speaker 04:
That was when Ms.

[00:17:46] Speaker 04:
Rizzo was employed by Concentric.

[00:17:48] Speaker 04:
The HR person reached out to her health care provider for documentation.

[00:17:54] Speaker 03:
Oh, so that wasn't after she was fired?

[00:17:56] Speaker 03:
Right, that she, yeah, okay.

[00:17:57] Speaker 04:
No, it wasn't, Your Honor.

[00:17:58] Speaker 03:
Oh, interesting, okay.

[00:17:59] Speaker 02:
But what about, you know, the court, she had a claim for injunctive relief to purge her personal records and the district court never addressed that.

[00:18:10] Speaker 04:
As far as I can tell your honor the district court found that.

[00:18:14] Speaker 04:
Ms.

[00:18:14] Speaker 04:
Rightsell was made whole by the award of money damages.

[00:18:19] Speaker 02:
But it never specifically addressed the request to purge personnel records, did it?

[00:18:24] Speaker 04:
It didn't reference it by name, but it stated that it considered all the injunctive or all the equitable relief that Ms.

[00:18:31] Speaker 04:
Rightsell was seeking and found that it was not appropriate.

[00:18:34] Speaker 04:
As for the equitable relief, that's Ms.

[00:18:37] Speaker 04:
Rightsell's obligation.

[00:18:38] Speaker 04:
It's her burden to prove that it is

[00:18:41] Speaker 04:
necessary and she didn't present any evidence that, for example, Concentric was reaching out to her employers or that during the time period after she was terminated from Concentric, she had any difficulties in finding or being hired because of the contents of her personnel file.

[00:19:01] Speaker 02:
The jury found willfulness on the part of Concentric as part of its jury verdict.

[00:19:06] Speaker 02:
Why

[00:19:07] Speaker 02:
Wouldn't that be a potentially appropriate remedy to purge her records in addition to making her whole in other ways?

[00:19:15] Speaker 04:
Your Honor, appellees don't deny that it is potentially appropriate.

[00:19:18] Speaker 02:
I think the problem is that the district court should have specifically addressed that issue one way or the other and we're sort of left to guess at why that particular form of relief wasn't granted or denied.

[00:19:31] Speaker 04:
And on that point, again, Your Honor, the district court simply found that it believed that misrides always made whole by the monetary damages, and that it wasn't necessary or appropriate to award any equitable relief.

[00:19:43] Speaker 02:
So can we talk about the attorney's fees?

[00:19:46] Speaker 02:
I too had a little bit of concern about the cutoff, particularly where plaintiffs prevail at trial.

[00:19:56] Speaker 02:
You know, you have a situation where someone won a verdict and had to go through the process of preparing for that trial and conducting the trial.

[00:20:05] Speaker 02:
Was it an abusive discretion for the district court to have cut things off at the settlement offer date?

[00:20:10] Speaker 04:
No, Your Honor.

[00:20:11] Speaker 04:
The district court is in the best position to understand the course of the litigation, and it has wide latitude in determining what is a reasonable attorney's fee.

[00:20:22] Speaker 04:
And in this case, the district court did give substantial weight to the fact that Ms.

[00:20:26] Speaker 04:
Reitzel would have been in a better position had she accepted that substantial settlement offer than having gone to trial.

[00:20:35] Speaker 04:
And as the Sixth Circuit has stated, there's nothing

[00:20:40] Speaker 04:
there's nothing that takes out a settlement offer from the broad constellation of factors that a district court can consider in determining a reasonable attorney.

[00:20:52] Speaker 02:
I agree.

[00:20:52] Speaker 02:
I mean, I think the court can consider it, but it seems, wasn't that first offer

[00:21:00] Speaker 02:
of $100,000 in total for her fees and attorney's fees.

[00:21:05] Speaker 02:
So why would she have been in a better position to take that versus what she received through the verdict?

[00:21:12] Speaker 04:
Because under the fee agreement with her counsel, Ms.

[00:21:15] Speaker 04:
Wrightsell was entitled to, or I'm sorry, her attorneys were entitled to the greater of one-third of Ms.

[00:21:22] Speaker 04:
Wrightsell's recovery.

[00:21:23] Speaker 04:
or the amount of attorney fees awarded by the court.

[00:21:27] Speaker 04:
So, in other words, if Ms.

[00:21:29] Speaker 04:
Reitzel had accepted the $100,000 settlement offer, she would have received $66,666.67.

[00:21:36] Speaker 04:
Having gone to trial, she received more than $1,000 less than that.

[00:21:44] Speaker 02:
I mean, so, I mean, but you see, I mean, that's a real parse, isn't it?

[00:21:50] Speaker 02:
So because of the happenstance, and if you grant that the discount rate was an error, let's say, let's assume that, for example, that's going to change both the damages judgment and the liquidation damages and the interest.

[00:22:05] Speaker 02:
So is this something that we should send back for the court to reassess whether the attorney's fees award is appropriate?

[00:22:14] Speaker 02:
We're talking about a thousand dollar difference between the potential of what the outcome might be at trial versus what she ended up getting.

[00:22:23] Speaker 02:
That seems a little tough to me, no?

[00:22:26] Speaker 04:
We don't believe that that was the only factor that the court considered in determining the reasonableness of attorney's fees.

[00:22:33] Speaker 04:
The court also discussed the settlement offers between the parties and Ms.

[00:22:39] Speaker 04:
Rightsell's settlement offers were substantially higher than the actual value of the case.

[00:22:44] Speaker 04:
The court also considered how much Ms.

[00:22:47] Speaker 04:
Rightsell was actually awarded as compared to what she sought throughout the litigation.

[00:22:55] Speaker 04:
May I address the proportionality argument?

[00:22:59] Speaker 04:
We disagree that the court employed a proportionality analysis in awarding attorney's fees.

[00:23:06] Speaker 04:
A proportionality analysis involves reducing the amount of attorney's fees awarded solely based off of the financial amount at issue.

[00:23:15] Speaker 04:
So in Cuff, for example, the employer argued that

[00:23:19] Speaker 04:
the attorney's fees should be reduced because the ratio of attorney's fees awarded to the plaintiff compared to what she obtained was far too large.

[00:23:29] Speaker 04:
And that's not what the district court did in this case.

[00:23:31] Speaker 04:
The district court determined that the fees incurred after March 4th, 2023 specifically were not reasonable because of the rejection of the settlement offer that would have put Ms.

[00:23:44] Speaker 04:
Wright-Sell in a better place.

[00:23:48] Speaker 01:
Could we talk about the fringe benefit rate?

[00:23:52] Speaker 01:
The court awarded 13%, is that correct?

[00:23:57] Speaker 01:
Where in the record is that supported, the 13%?

[00:24:00] Speaker 01:
The only thing I thought was in the record was the 13.2% that Dr. Bueller had listed.

[00:24:07] Speaker 04:
Yes, you are correct on that, Your Honor.

[00:24:09] Speaker 04:
The district court appeared to round down the 13.2% down to the 13%.

[00:24:16] Speaker 04:
And we believe that that wasn't clear error in this case because... It was?

[00:24:20] Speaker 04:
I'm sorry, Your Honor.

[00:24:22] Speaker 04:
It was not clear error in this case.

[00:24:25] Speaker 01:
Well, how can it not be a clear error if there's nothing in the record to support it?

[00:24:30] Speaker 01:
That .2% can make a difference.

[00:24:32] Speaker 04:
True, Your Honor.

[00:24:34] Speaker 04:
Dr. Bueller, in testifying, didn't provide any rationale for why he used a 13.2% rate or why that would be appropriate.

[00:24:44] Speaker 04:
And so the district court, in considering his testimony, was empowered to accept or reject as much of his testimony as it found helpful.

[00:24:54] Speaker 01:
Well, but there was no challenge to his calculation.

[00:24:59] Speaker 04:
That is, that's true your honor and as I previously mentioned the district court rounded down and we don't believe that that itself is an abuse of discretion or clear error.

[00:25:09] Speaker 01:
It's a problem when there's nothing in the record to support it to me.

[00:25:15] Speaker 01:
The final thing I wanted to ask you about was did the parties agree that section 1961 was a governing statute on interest?

[00:25:24] Speaker 04:
The parties do not agree on that, Your Honor.

[00:25:26] Speaker 01:
Oh, they didn't.

[00:25:26] Speaker 01:
So what statute did you think was the appropriate statute for the interest calculation?

[00:25:33] Speaker 04:
That would just be the general FMLA statute, which requires that the court award interest at the prevailing rate.

[00:25:40] Speaker 01:
So how do you determine the prevailing rate, though?

[00:25:44] Speaker 04:
The district, Your Honor, that the district court did look to a statute.

[00:25:52] Speaker 04:
1961.

[00:25:54] Speaker 04:
Okay, as for whether, what I think that your honor is getting at is whether compounding interest was appropriate.

[00:26:04] Speaker 01:
Because 1961 does say that the interest should be compound.

[00:26:09] Speaker 04:
Yes, that is true, Your Honor.

[00:26:12] Speaker 04:
Section 1961 applies to post-judgment interest, not to pre-judgment interest.

[00:26:18] Speaker 04:
Several circuit courts have found that, and the actual text of section 1961 states that how interest should be calculated on a judgment.

[00:26:28] Speaker 04:
That's post-judgment interest, not pre-judgment interest.

[00:26:32] Speaker 04:
The court had discretion to determine whether to use simple or compounding interest.

[00:26:37] Speaker 04:
For pre-judgment?

[00:26:38] Speaker 04:
For pre-judgment interest.

[00:26:39] Speaker 01:
And so what case is that?

[00:26:43] Speaker 04:
Just one moment, Your Honor.

[00:26:56] Speaker 04:
That's American National Fire Insurance Company, X-Rail Tabakalera Contreras Cigar Company.

[00:27:05] Speaker 04:
What's that site?

[00:27:07] Speaker 04:
That is 325 F3rd 924.

[00:27:11] Speaker 04:
9th Circuit case?

[00:27:13] Speaker 04:
That's the 7th Circuit case.

[00:27:14] Speaker 01:
That's what I thought.

[00:27:15] Speaker 01:
So you don't have a 9th Circuit case that says it's up to the judge to determine whether or not to compound the interest on prejudgment.

[00:27:24] Speaker 04:
only the cases that were cited in our brief, and I don't believe that there was a Ninth Circuit case that we cited on that issue.

[00:27:32] Speaker 02:
Can I just ask one more question?

[00:27:33] Speaker 02:
Did the district court understand or believe that it had the discretion to decide whether to compound or use simple interest?

[00:27:42] Speaker 04:
In the motion to alter and

[00:27:46] Speaker 04:
amend the judgment filed by the plaintiff, the district court did state that simple interest was appropriate in this case for one, because that's what it understood Ms.

[00:28:00] Speaker 04:
Wright-Sell to be asking for.

[00:28:01] Speaker 04:
We don't believe that the district court went against established law in

[00:28:11] Speaker 02:
I think if I remember correctly the court said it hadn't been properly raised until a reply brief or something or other I guess but what my question was did the court approach it as saying I have an option between simple interest and compound interest or did it construe it as I must do simple interest?

[00:28:29] Speaker 04:
The court did not specifically consider the issue of

[00:28:34] Speaker 04:
In its analysis, it did not note whether simple or compounding interest was appropriate.

[00:28:40] Speaker 04:
It awarded simple interest because that's what it understood Ms.

[00:28:44] Speaker 04:
Reisel to be seeking.

[00:28:47] Speaker 01:
Okay.

[00:28:47] Speaker 01:
All right.

[00:28:47] Speaker 01:
Thank you, Counsel.

[00:28:48] Speaker 01:
Rebuttal.

[00:28:48] Speaker 04:
Thank you, Your Honors.

[00:29:00] Speaker 00:
Thank you, Your Honors.

[00:29:01] Speaker 00:
Counsel said something that I hope.

[00:29:03] Speaker 00:
all three of you caught.

[00:29:05] Speaker 00:
And that is that when Ms.

[00:29:07] Speaker 00:
Reitzel left Funnywell Capital, she did not look for or find substantially similar employment.

[00:29:16] Speaker 00:
That's the defendant's burden.

[00:29:18] Speaker 00:
The only evidence in the record, the only evidence in the record, is that there were 52 jobs available that this plaintiff found, applied for, and didn't get hired.

[00:29:29] Speaker 00:
There isn't one shred of evidence that there was a single additional job out there anywhere.

[00:29:35] Speaker 00:
If there was, I would have expected the defendants to put on evidence about that.

[00:29:39] Speaker 00:
That's where, frankly, the analysis went off the rails.

[00:29:42] Speaker 00:
That's where we believe the analysis shifted the burden to Ms.

[00:29:46] Speaker 00:
Reitzel instead of keeping it on the defendants to present that evidence, which they did not do.

[00:29:53] Speaker 00:
That's similar to the analysis that

[00:29:56] Speaker 00:
was looked at in the NLRB versus Ampersand publication, and the Kawasaki Motors versus NLRB, and the Thorson case out of the Northern District of Iowa was a firm subnum by the Eighth Circuit.

[00:30:08] Speaker 00:
Those cases talk about this type of an issue.

[00:30:11] Speaker 00:
ODIHMA is very clear where that burden lies.

[00:30:14] Speaker 00:
It's a two-part burden.

[00:30:16] Speaker 00:
SIAS talks about using reasonable diligence to find substantially equivalent positions, but that's not

[00:30:24] Speaker 00:
the burden of any employee.

[00:30:27] Speaker 00:
That's the defendant's burden.

[00:30:30] Speaker 00:
If you look at some of these other cases where that burden was determined not to be present, they introduced evidence of newspaper articles, they introduced evidence of job postings, they introduced evidence of other things that would demonstrate that there were positions available.

[00:30:47] Speaker 00:
Here, there's none of that.

[00:30:49] Speaker 02:
I take it defendant's position is

[00:30:52] Speaker 02:
Part of the evidence is being able to rely on Ms.

[00:30:55] Speaker 02:
Wrightsell's own statements about wanting flexibility, transportation near her home, and those issues as a basis to say why she didn't look further out.

[00:31:06] Speaker 02:
Why is that inappropriate?

[00:31:09] Speaker 00:
Let's not leave out the important part of that.

[00:31:10] Speaker 00:
She said she couldn't pay her bills.

[00:31:12] Speaker 00:
I don't know any employee that isn't going to go look for another job and leave to go find a better one if they can't meet their living expenses.

[00:31:19] Speaker 00:
Also, she had no protective leave.

[00:31:22] Speaker 00:
She'd just been fired from a job where she exercised protected leave and was fired because she was absent.

[00:31:28] Speaker 00:
So I think you have to look at the totality of these circumstances because I think they're, you know, again, it shows where the analysis fell short.

[00:31:37] Speaker 00:
It's not her burden.

[00:31:39] Speaker 00:
It's the defendant's burden.

[00:31:40] Speaker 00:
Defendants didn't put on evidence.

[00:31:43] Speaker 03:
She did get a substantially equivalent job, or you're just disagreeing with that?

[00:31:47] Speaker 00:
I'm talking about after the six weeks period, following the six week period, where she went to Clancy's.

[00:31:52] Speaker 00:
She went to work at Clancy's.

[00:31:54] Speaker 03:
Why is that not enough?

[00:31:55] Speaker 03:
If she got a job that is substantially equivalent, why?

[00:31:58] Speaker 00:
Precisely.

[00:31:59] Speaker 00:
Ampersand Publication, Kawasaki Motors, Thorson, they all talked specifically about that job being sufficient to not cut off.

[00:32:08] Speaker 00:
She didn't leave the workforce.

[00:32:10] Speaker 00:
She didn't leave the labor market.

[00:32:11] Speaker 00:
She worked.

[00:32:12] Speaker 00:
That's where the distinction from the Sangster case that they cite out of the Sixth Circuit is very, very different.

[00:32:17] Speaker 00:
That employee sat around for eight years waiting for a ruling that she be reinstated.

[00:32:21] Speaker 00:
That is not what happened here.

[00:32:23] Speaker 01:
So, counsel, when it's, in your view, when should the back pay have been cut off?

[00:32:28] Speaker 01:
At what point should there have been deemed that she had sufficiently recovered from the firing?

[00:32:37] Speaker 01:
At what point?

[00:32:38] Speaker 00:
When the defendants put on evidence

[00:32:41] Speaker 00:
of a substantially equivalent position where she would have earned money that exceeded the compensation that she received at Concentric.

[00:32:49] Speaker 00:
There is no evidence.

[00:32:50] Speaker 01:
So are you saying there is no cutoff then?

[00:32:52] Speaker 01:
So the back pay should have continued up to the time of trial?

[00:32:55] Speaker 01:
Is that your argument?

[00:32:56] Speaker 00:
That is back pay.

[00:32:57] Speaker 00:
Back pay is up until the time judgment is entered.

[00:33:00] Speaker 00:
And that is our argument here.

[00:33:01] Speaker 00:
$19,978.94, that's the result of the undervaluation of her damages by not using compound interest.

[00:33:11] Speaker 00:
by applying the discount rate and by not using the correct factor for fringe benefits.

[00:33:21] Speaker 00:
That's not an insignificant amount of money, especially for a single mom.

[00:33:25] Speaker 00:
It's not an insignificant amount of money.

[00:33:27] Speaker 01:
What would the damages, back pay damages have been up to the time of trial?

[00:33:33] Speaker 00:
Up to the time of trial, that's the $262,000 amount that we had set forth in our papers.

[00:33:38] Speaker 00:
And again, that depends on which scenario we look at here.

[00:33:41] Speaker 00:
There were two scenarios, and we did put forward an interest rate calculation.

[00:33:44] Speaker 00:
It's in the papers.

[00:33:45] Speaker 00:
There's a formula for using compound interest, and it's in there.

[00:33:49] Speaker 00:
We told the judge about it.

[00:33:50] Speaker 03:
Yeah, the problem is that that's really complicated.

[00:33:52] Speaker 03:
You didn't say anywhere, we want compound interest, right?

[00:33:55] Speaker 03:
We did.

[00:33:56] Speaker 03:
It's in there.

[00:33:57] Speaker 00:
We said we want interest using this formula.

[00:33:59] Speaker 03:
Yeah, OK.

[00:34:00] Speaker 03:
But they're judges.

[00:34:02] Speaker 03:
They're not like actuarials.

[00:34:04] Speaker 03:
They don't know what that formula means.

[00:34:05] Speaker 03:
I'm sorry to say.

[00:34:06] Speaker 03:
And frankly, it's usually the law clerk that's going to look at that and say, how are they supposed to know that?

[00:34:11] Speaker 00:
There's a statute that talks about, and certainly the court... But that issue was not presented like that.

[00:34:16] Speaker 00:
It wasn't.

[00:34:17] Speaker 00:
The words compound interest were not used in that context.

[00:34:21] Speaker 00:
Here's the formula for calculating interest according to the statute.

[00:34:25] Speaker 01:
But the statute talks about compound interest.

[00:34:27] Speaker 00:
Absolutely talks about it.

[00:34:29] Speaker 00:
Thank you.

[00:34:30] Speaker 00:
Thank you, Your Honors.

[00:34:30] Speaker 01:
Thank you to both counsels.

[00:34:31] Speaker 01:
The case just argued is submitted for decision by the court.