NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       ____________

                    Nos. 09-3846 and 09-3948
                          ____________

                      DAVID G. HAYDUK,

                              Appellant, No. 09-3846

                                v.

                   CITY OF JOHNSTOWN;
JEFFREY F. SILKA, individually and in his capacity as City Manager,

                             Appellants, No. 09-3948
                          ____________

          On Appeal from the United States District Court
             for the Western District of Pennsylvania
                     (D.C. No. 3-05-cv-00294)
            District Judge: Honorable Kim R. Gibson
                          ____________

          Submitted Pursuant to Third Circuit LAR 34.1(a)
                          June 24, 2010

    Before: SMITH, FISHER and GREENBERG, Circuit Judges.

                       (Filed: July 2, 2010)
                          ____________

                    OPINION OF THE COURT
                         ____________
FISHER, Circuit Judge.

       Plaintiff David Hayduk appeals from a judgment of the District Court following an

unfavorable jury verdict. Defendants City of Johnstown, Pennsylvania, and City Manager

Jeffrey Silka have filed a cross-appeal. We will affirm the District Court’s judgment and

dismiss the Defendants’ cross-appeal.

                                             I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Hayduk was employed by the City of Johnstown as a residential housing

rehabilitation specialist. He missed work on August 29, 2003, as well as several other

days during that month. On September 4, 2003, Hayduk was called to a meeting with

Silka, Assistant City Manager Curtis Davis, and Ronald Andrews, Hayduk’s immediate

supervisor. Hayduk was told that if his attendance did not improve he would be placed

on part-time status or discharged. Hayduk responded that his absences were due to

legitimate medical conditions. Silka drafted an “action plan,” which required Hayduk to

call in sick and to provide a doctor’s note whenever he missed work on account of illness.

Hayduk reported to work on September 5 but, while working outside the office, fainted

and went home. He went to the hospital the next morning and remained there until

September 7. Hayduk himself did not immediately relay this incident or his whereabouts

to his superiors, but his girlfriend left a message on Davis’ voice mail notifying him of

                                              2
Hayduk’s hospital stay. Hayduk next reported to work on September 9 and filled out an

accident report for the September 5 episode. That morning, Silka, Andrews, and Davis

convened another meeting with Hayduk and reassigned him to an administrative position

until further notice. At the end of the next day, Silka terminated Hayduk due to, among

other things, his failure to report to work on September 5 and his pattern of absences

throughout August 2003. Hayduk subsequently requested reinstatement but was refused.

       In June 2005, Hayduk filed this lawsuit in the Western District of Pennsylvania

against the City and Silka, alleging violations of the Family and Medical Leave Act of

1993 (“FMLA”), 29 U.S.C. § 2601, et seq., and 42 U.S.C. § 1983. Discovery ensued,

followed by cross-motions for summary judgment. In June 2008, the District Court ruled

on the parties’ respective motions, whittling down the issues for trial. Hayduk v. City of

Johnstown, 

(W.D. Pa. 2008). As relevant here, the Court interpreted

Hayduk’s FMLA claim, insofar as it was premised on his allegedly unlawful termination,

as a retaliation claim instead of as an interference claim, and deferred resolution of a

portion of that claim for trial. The Court also ruled that Hayduk had established as a

matter of law that he gave the Defendants sufficient notice of his need for FMLA leave

for his absences on August 29 and September 5.

       The case was tried to a jury in June 2009. After the close of evidence, the District

Court informed the parties that it would submit to the jury the question whether Hayduk

gave the Defendants sufficient notice of his need for FMLA leave on August 29 and

September 5 despite its earlier ruling that Hayduk had established notice for those two

                                              3
dates as a matter of law. Neither party objected. In relevant part, the jury found that

Hayduk failed to prove that he had a serious health condition on August 29 or that he

gave sufficient notice to the Defendants of his need for FMLA leave on September 5.

Because the jury determined that these essential elements of Hayduk’s FMLA claim were

lacking, it effectively found that the Defendants were not liable to Hayduk; the verdict

was therefore entirely favorable to the Defendants.

       Hayduk thereafter moved for judgment as a matter of law or, in the alternative, for

a new trial, arguing, as relevant here, that there was insufficient evidence to support the

jury’s notice finding and that the District Court’s submission of the notice question to the

jury was error in light of its summary judgment ruling. The Defendants opposed that

motion and separately filed a “contingent” motion for judgment as a matter of law. The

District Court denied Hayduk’s motion, reasoning that there was sufficient evidence to

support the jury’s verdict, and either that the Court’s submission of the notice question

was not improper or that Hayduk had waived his right to object. Given its denial of

Hayduk’s motion, the Court summarily denied the Defendants’ contingent motion as

moot and entered judgment in their favor. Both parties have timely appealed.1


       1
        The District Court had jurisdiction under 28 U.S.C. § 1331 and we have
jurisdiction under 28 U.S.C. § 1291. “We review the District Court’s decision denying a
motion for judgment as a matter of law de novo, and apply the same standard that the
District Court did, namely whether, viewing the evidence in the light most favorable to
the non-movant and giving it the advantage of every fair and reasonable inference, there
is insufficient evidence from which a jury reasonably could find liability.” Eddy v. V.I.
Water & Power Auth., 

, 230 (3d Cir. 2004) (quotation marks and citation
omitted). “The standard of review on a motion for a new trial is abuse of discretion,

                                              4
                                                II.

       A.      Hayduk’s Appeal

       As we understand his brief, Hayduk essentially raises three main issues for our

review.2 First, he argues that the District Court erred in construing his FMLA claim as

one for retaliation and not as one for interference. Second, he contends that the District

Court erred in submitting the notice question to the jury. And third, he claims that there

was insufficient evidence to support the jury’s finding that he did not give the Defendants

adequate notice of his need for FMLA leave.

       1.      Interpretation of the FMLA Claim

       Congress promulgated the FMLA in 1993 to accommodate “the important societal

interest in assisting families[] by establishing a minimum labor standard for leave.”

Churchill v. Star Enters., 

, 192 (3d Cir. 1999) (quoting S. Rep. No. 103-3 at

4, 1993 U.S.S.C.A.N. at 6-7). To protect that interest, the FMLA contains two distinct

provisions. Callison v. City of Philadelphia, 

, 119 (3d Cir. 2005). First, it

makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or

the attempt to exercise, any right provided under” the FMLA. 29 U.S.C. § 2615(a)(1). A




except where a district court bases its denial of the motion on an application of law, in
which case an appellate court’s review is plenary.” McKenna v. City of Philadelphia, 

, 460 (3d Cir. 2009) (citation omitted).
       2
        Although the argument portion of Hayduk’s brief is separated into only two
sections, it is clear to us that he in fact is advancing three distinct, albeit interrelated,
issues.

                                                 5
claim arising under that provision is known as an “interference” claim. 

. Second, the FMLA makes it “unlawful for any employer to discharge or in

any other manner discriminate against any individual for opposing any practice made

unlawful” by the FMLA. 29 U.S.C. § 2615(a)(2). A claim under that provision is

referred to as a “retaliation” or a “discrimination” claim. 

.

       In its summary judgment ruling, the District Court reviewed the types of relief

available under the FMLA and, based on a decision by the same District Judge in a

different case, concluded that “in the Third Circuit claims for wrongful termination under

the FMLA must be treated as discrimination or retaliation claims.” Hayduk, 

at 458 n.18 (citation omitted). The District Court then considered Hayduk’s complaint

and, noting his allegation that he had been unlawfully discharged, reiterated that “an

action alleging termination for the exercise of rights granted by the FMLA is treated in

the Third Circuit as a case of discrimination,” and therefore elected to analyze his “claim

as one of discrimination rather than interference.” 

After the District

Court’s summary judgment ruling and the trial of this case, we clarified that an employee

alleging a discharge in violation of the FMLA may proceed under both theories of

recovery. See Erdman v. Nationwide Ins. Co., 

, 509 (3d Cir. 2009) (holding

that “firing an employee for a valid request for FMLA leave may constitute interference

with the employee’s FMLA rights as well as retaliation against the employee” (footnote

omitted)). In light of Erdman, we will assume for the sake of argument that Hayduk is

correct that the District Court improperly restricted him to a single theory of recovery to

                                             6
the extent his FMLA claim was predicated on his allegedly unlawful termination. That

purported error is of no consequence here.

       The two theories of recovery available under the FMLA require proof of different

elements. To prove an interference claim, a plaintiff must show “[(1)] that he was entitled

to benefits under the FMLA and [(2)] that his employer illegitimately prevented him from

obtaining those benefits.” Sarnowski v. Air Brooke Limousine, Inc., 

, 401

(3d Cir. 2007). To prove a retaliation claim, a plaintiff must show that (1) he invoked his

right to FMLA benefits, (2) he suffered an adverse employment decision, and (3) the

adverse decision was causally related to his invocation of his rights. See 

; Conoshenti v. Pub. Serv. Elec. & Gas Co., 

, 146 (3d Cir. 2004).

These differences notwithstanding, the first elements of both theories are essentially

identical: a plaintiff pressing either theory must establish, among other things, that he had

a right to FMLA benefits. To that end, the plaintiff must demonstrate that he gave his

employer adequate notice of his need for FMLA leave. See 29 C.F.R. §§ 825.302-.303;

see also Carter v. Ford Motor Co., 

, 1148 (8th Cir. 1997) (“FMLA

regulations require employees to provide adequate notice to their employers of the need

to take leave.” (citation omitted)).

       The viability of Hayduk’s FMLA claim, then, whether it was characterized as an

interference claim or a retaliation claim, or both, hinged in part on whether he could

prove that he provided notice to the Defendants that he intended to take or had taken

FMLA leave. Put another way – and as Hayduk implicitly acknowledges in his brief, (see

                                             7
Appellant’s Br. 21) – the only pivotal question is one of notice. Significantly, that

question was put to the jury and the jury answered it in the negative. For the reasons

discussed below, we perceive no reason to upset that finding. Accordingly, Hayduk has

no warrant to complain and we decline to disturb the District Court’s judgment on this

ground.

       2.     Submission of the Notice Question

       In its summary judgment ruling, the District Court concluded, as a matter of law,

that Hayduk had given the Defendants adequate notice of his need for FMLA leave on

August 29 and September 5. After the close of evidence but before the jury charge, the

District Court informed the parties that its conclusions in its summary judgment ruling

“were made solely for the purposes [of] adjudicating the summary judgment motions” and

that, in light of its review of this Court’s pattern jury instructions, the question of notice

was “more appropriately reserved for the jury’s determination and analysis without undue

restrictions.” (App. 835.) Although the District Court welcomed questions from the

parties, Hayduk’s counsel said he had none and did not otherwise object to the jury

charge or verdict form.

       Under the Federal Rules of Civil Procedure, “[a] party may assign as error . . . an

error in an instruction actually given, if that party properly objected[.]” Fed. R. Civ. P.

51(d)(1)(A); see Alexander v. Riga, 

, 426-27 (3d Cir. 2000). Where, as here,




                                               8
a party fails to object to an instruction, our review is limited to the plain-error standard.3

See Fed. R. Civ. P. 51(d)(2); see also Bostic v. Smyrna Sch. Dist., 

, 359 (3d

Cir. 2005). Under that standard, “we consider, inter alia, the obviousness of the error, the

significance of the interest involved, and the reputation of judicial proceedings if the error

stands uncorrected.” Franklin Prescriptions, Inc. v. New York Times Co., 

,

340-41 (3d Cir. 2005) (internal quotation marks and citations omitted). We will reverse

under the plain-error standard only if there was: (1) an error; (2) that was plain; and

(3) that affected substantial rights. Selkridge v. United of Omaha Life Ins. Co., 

, 166-67 (3d Cir. 2004). “Plain error review is discretionary – it should be exercised

sparingly and should only be invoked with extreme caution in the civil context.”

Franklin 

(internal quotation marks and citation omitted).

       The Federal Rules of Civil Procedure provide that if summary judgment is entered

on less than an entire case and a trial on the remaining claims is required, a court “should


       3
         Relying on LeBoon v. Lancaster Jewish Community Center Ass’n, 

(3d Cir. 2007), Hayduk maintains that he did not waive his right to object. In LeBoon,
which involved a factual and legal context quite distinct from the one presented here, we
homed in on the difference between the doctrines of waiver and forfeiture. See 

While “waiver” and “forfeiture” are not the same, see United States v. Olano, 

, 733-34 (1993), courts “have so often used them interchangeably that it may be too
late to introduce precision,” Freytag v. Comm’r of Internal Revenue, 

, 894
n.2 (1991) (Scalia, J., concurring in part and concurring in the judgment). Thus, even
assuming that Hayduk is technically correct that he did not “waive” his right to object, cf.
Nara v. Frank, 

, 196 (3d Cir. 2007) (“Failing to timely assert a right results
in forfeiture, which permits plain error review. . . . Waiver, on the other hand,
extinguishes any error.” (citation omitted)), the precise label we ascribe to that omission
is irrelevant. What matters is that Hayduk failed to object, and the record leaves no room
for doubt that he failed to do so despite the District Court’s express invitation.

                                               9
. . . issue an order specifying what facts . . . are not genuinely at issue. The facts so

specified must be treated as established in the action.” Fed. R. Civ. P. 56(d)(1) (emphasis

added). Under the rule, then, the District Court’s conclusion that there was no question

that Hayduk had given the Defendants notice for his August 29 and September 5 absences

was “established” for purposes of this case. See Singh v. George Washington Univ. Sch.

of Med. & Health Scis., 

, 1106 (D.C. Cir. 2007) (“Facts found on partial

summary judgment are taken as established at trial.” (citation omitted)); cf. Lahoti v.

VeriCheck, Inc., 

, 1202 n.9 (9th Cir. 2009) (district court properly granted

summary judgment on one element of plaintiff’s claim not subject to genuine dispute but

held a trial on the other elements).

       It is true, as the District Court recognized, that a judge retains the power to modify

or reopen a partial summary judgment ruling. See Fed. R. Civ. P. 54(b) (“[A]ny order . . .

that adjudicates fewer than all the claims . . . may be revised at any time before the entry

of a judgment adjudicating all the claims . . . .”). “However, if the judge ‘subsequently

changes the initial ruling and broadens the scope of trial, the judge must inform the

parties and give them an opportunity to present evidence relating to the newly revived

issue.’” Alberty-Velez v. Corporacion de P.R. Para la Diffusion Publica, 

,

422 (1st Cir. 2001) (quoting Leddy v. Standard Drywall, Inc., 

, 386 (2d Cir.

1989)); accord Huss v. King Co., 

, 650-51 (6th Cir. 2003). Indeed, a judge’s

“reopening of . . . an issue without notice to the parties is error, and reversible error if it

causes substantial prejudice.” 

(citing 

).

                                               10
       Applying these principles here, we conclude that the District Court committed

error and that its error was plain. The Court expressly concluded in its summary

judgment ruling that there was no genuine question of material fact as to notice on two

relevant dates. The parties were therefore entitled to rely on that determination when

preparing their trial strategies. See 

(“Once a district judge issues a

partial summary judgment order removing certain claims from a case, the parties have a

right to rely on the ruling by forbearing from introducing any evidence or

cross-examining witnesses in regard to those claims.”). And the record makes plain that

Hayduk did in fact so rely and was not given an additional opportunity to present

evidence on this newly revived issue.4

       Because the District Court committed plain error, the question remains whether

Hayduk’s substantial rights were prejudiced. He alone shoulders the burden of showing

as much. See Virgin Islands v. Rosa, 

, 293 (3d Cir. 2005). Because the jury

found that Hayduk failed to prove that he had a serious health condition on August 29, it

did not answer the question whether he proved notice as to that date. The jury did find,

however, that Hayduk proved that he had a serious health condition on September 5 and

proceeded to find that he did not prove notice as to that date. Given these circumstances,

the only question here is whether Hayduk can show that he was prejudiced by the District


       4
        Hayduk’s understanding that he was not obligated to prove notice as to August 29
and September 5 because of the District Court’s summary judgment ruling was clearly
reflected in his opening statement as well as his proposed jury instructions and verdict
form.

                                             11
Court’s course of action as it related to notice for September 5. He has fallen far short of

that mark.

       A juxtaposition of Hayduk’s proffers at both summary judgment and trial reflect

substantial, if not complete, overlap. At both stages, Hayduk presented more or less the

same witness testimony (e.g., his own as well as his supervisors’) and documentary

evidence (e.g., a report about the September 5 incident, Silka’s written reprimand, and a

summary of the September 9 meeting). Furthermore, Hayduk nowhere even obliquely

intimates that he withheld at trial any testimony or evidence that he had submitted at

summary judgment. In other words, everything Hayduk could have introduced at trial to

prove that he gave notice to the Defendants of his need for FMLA leave on September 5

was in fact introduced at trial. Accordingly, Hayduk’s claim in this vein fails because he

has not demonstrated how the outcome of the trial would have been different absent the

District Court’s error. See, e.g., 

; cf. 

.

       3.     Sufficiency of the Evidence

       The FMLA’s implementing regulations impose certain notice obligations on

employees. For “unforeseeable FMLA leave,” the regulations in force at the time the

events giving rise to this lawsuit took place provided that “an employee should give

notice to the employer of the need for FMLA leave as soon as practicable under the facts

and circumstances of the particular case.” 29 C.F.R. § 825.303(a) (2003 ed.). That

regulation further stated that “[i]t is expected that an employee will give notice to the

                                             12
employer within no more than one or two working days of learning of the need for leave,

except in extraordinary circumstances where such notice is not feasible.” 

The former regulations did not require that an employee’s notice to the employer

contain any particular content, and instead provided only that “[t]he employee need not

expressly assert rights under the FMLA or even mention the FMLA, but may only state

that leave is needed.” 

The District Court read these very principles to

the jury in its charge.

       Hayduk’s evidence as to notice for September 5 basically amounted to testimony

from both himself and his supervisors that he told them at the September 9 meeting that

he had fainted on September 5 and gone to the hospital on September 6, as well as reports

relating the events of both dates. We cannot know why the jury found this evidence

inadequate, cf. Riley v. K Mart Corp., 

, 1054 (3d Cir. 1988) (“[A] court will

not ordinarily inquire into a jury’s thought processes . . . .”), but there is certainly nothing

in the record that would have compelled the jury to reach a different verdict, especially

given the rather amorphous standards in the regulations. It may be that the jury found

that the message left by Hayduk’s girlfriend on Davis’ voice mail did not convey

sufficient information to the Defendants. Or, even assuming the content of that message

were sufficient to trigger the FMLA’s protections, the jury may have determined that

Hayduk did not give notice “as soon as practicable under the facts and circumstances of

th[is] particular case.” Considering that Hayduk made those statements only after the

Defendants convened that meeting – which took place four days after the incident and

                                               13
three days after Hayduk’s discharge from the hospital – we do not view this finding as

unsustainable. See, e.g., Brenneman v. MedCentral Health Sys., 

, 424 (6th

Cir. 2004).

       All this to say that Hayduk’s evidence was arguably sufficient for the jury to find

that he gave the Defendants’ sufficient notice. See, e.g., Aubuchon v. Knauf Fiberglass,

GMBH, 

, 953 (7th Cir. 2004). But just because that evidence may have been

sufficient to support a jury finding in Hayduk’s favor does not mean that it necessarily

required as much. See Aparicio v. Norfolk & W. Ry., 

, 813 (6th Cir. 1996)

(“To say that the evidence is sufficient to create a jury question does not mean, of course,

that a jury will ultimately find [for one party or the other] when the case is submitted to

the jury.” (citations omitted)). In short, under the highly deferential standard of review

we owe the jury’s verdict, we cannot hold that “the record is critically deficient of that

minimum quantity of evidence from which [the] jury might reasonably” have found that

Hayduk did not give adequate notice to the Defendants as to his September 5 absence.

Wagner v. Firestone Tire & Rubber Co., 

, 656 (3d Cir. 1989) (quotation

marks and citation omitted).

       B.     The Defendants’ Cross-Appeal

       Because Hayduk has advanced no persuasive ground for upsetting the District

Court’s judgment, we need not reach the merits of the Defendants’ cross-appeal. See

Windt v. Qwest Commc’ns Int’l, Inc., 

, 187 n.2 (3d Cir. 2008); Deary v.

Three Un-Named Police Officers, 

, 199 n.22 (3d Cir. 1984). We note, in any

                                             14
event, that the Defendants prevailed in full before the District Court and that a prevailing

party ordinarily may not appeal a judgment in its favor for lack of standing. See, e.g.,

Lindheimer v. Ill. Bell Tel. Co., 

, 176 (1934); Ward v. Santa Fe Indep. Sch.

Dist., 

, 603 (5th Cir. 2004); Cochran v. M. & M. Transp. Co., 

,

522 (1st Cir. 1940). Thus, because the Defendants were in no way aggrieved by the

judgment of the District Court, their cross-appeal must be dismissed for lack of

jurisdiction. See Armotek Indus., Inc. v. Employers Ins. of Wassau, 

, 759 n.3

(3d Cir. 1991).

                                            III.

       For the foregoing reasons, we will affirm the District Court’s judgment and

dismiss the Defendants’ cross-appeal.




                                             15