United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3822
                                   ___________

Sandra R. Throneberry,               *
                                     *
           Plaintiff/Appellant,      *
                                     *
Walter M. Dickinson,                 *
                                     * Appeal from the United States
           Plaintiff,                * District Court for the
                                     * Eastern District of Arkansas.
      v.                             *
                                     *
McGehee Desha County Hospital,       *
                                     *
           Defendant/Appellee.       *
                                ___________

                          Submitted: November 16, 2004
                              Filed: April 11, 2005
                                   ___________

Before RILEY, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

       Does the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.
§§ 2601-2654, mandate strict liability for employers in all cases in which an employer
interferes with an employee’s FMLA rights? We conclude it does not.

      Sandra Throneberry (Throneberry) sued her employer, McGehee Desha County
Hospital (Hospital), alleging three violations of the FMLA. After a jury trial, the
district court1 entered judgment in the Hospital’s favor, and later denied
Throneberry’s Motion for a New Trial, Judgment as a Matter of Law, and to Alter or
Amend. We affirm.

I.    BACKGROUND
      Throneberry, a registered nurse, accepted a position as a staff home health
nurse with the Hospital in 1988. During her employment with the Hospital,
Throneberry enjoyed above-average performance reviews and increased
responsibility. In 1998, after her father’s death and her divorce, Throneberry’s mental
health gradually deteriorated to a point where it impacted her working relationships
and job performance. Throneberry began missing work, leaving work to visit a
casino, failing to read important mail, and not completing her work. According to
Throneberry, she began to suffer a nervous breakdown, and also began taking the
prescription drugs Xanax, Prozac and Luvox to treat her emotional issues.

       In August 1998, Throneberry’s mental and emotional problems came to a head
at work. At trial, Throneberry testified about her emotional state in August 1998: “I
know that I had difficulty concentrating. . . . I could not complete tasks. . . . I was
depressed. I was having mood swings. I could cry about–I would cry about almost
anything. I was upset.” One of Throneberry’s co-workers, who is also a registered
nurse, testified at trial that Throneberry “was agitated one minute, crying the next,
unable to focus at work. When she did come to work, it was disruptive to the rest of
us because we weren’t able to–because you never knew if she was going to be happy,
sad or crying.” After Throneberry endured three tumultuous days in and out of work
in early August 1998, Barbara Wood (Wood), the acting Hospital administrator, met
with Throneberry and recommended “she please take a month’s leave of absence to



      1
       The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.

                                         -2-
get herself together and we would re-evaluate at the end of the month.” Throneberry
agreed to take a month of paid medical leave to address her serious health condition.

       Although Throneberry was on medical leave, her co-workers informed Wood
that Throneberry still showed up at work “acting just like she was before: over-
medicated, ansy, [and] disrupting the work–their workplace.” Throneberry’s co-
workers called Wood to ask her to come to the work area, as “they could not deal with
it anymore.” When Wood arrived to see what was happening, “Throneberry was
reared back in a seat and she had on a short, tight dress that was very inappropriate
for the workplace, and she was laughing, giggly. . . . She had her chair reared back
and her [legs were] propped up on the chair and her knees were apart.” Wood never
had seen any employee at the Hospital act or dress like Throneberry did that day.
Wood called Throneberry’s mother and aunt so they could pick her up at work.

       After this incident, Wood was told by another management member that “you
need to let [Throneberry] go.” After thinking about the situation for “a long time,”
Wood decided she would not discharge Throneberry, which would require informing
the state board of nursing, but instead would ask her to resign. Wood then met with
Throneberry and asked her to resign. When asked why, Wood told Throneberry her
work performance had declined in the last year, and her personal problems had
impacted the entire department. Throneberry refused to resign, left the meeting, and
went home, where she overdosed on Xanax. After being released from the hospital
the next day, Throneberry called Wood and asked to resign with pay, as long as the
Hospital provided her with certain severance benefits, which the Hospital paid.
According to a resignation agreement Throneberry signed, she continued on a leave
of absence, with pay and benefits, until December 31, 1998, at which time her
resignation became effective. Throneberry testified she “would have continued [her]
medical leave” if she had known she had been entitled to twelve weeks of FMLA
leave.



                                        -3-
      After Throneberry resigned, her former co-workers assumed her
responsibilities and reviewed her unopened mail. Throneberry’s unopened mail
included letters from the state health department relating to Medicaid updates. Some
of these letters were over five months old. The co-workers also discovered
Throneberry had billed Medicaid for services without proper documentation, which
required the Hospital to repay Medicaid approximately $40,000. Based on the
performance issues discovered after Throneberry resigned, Wood testified she would
have discharged Throneberry before her resignation date took effect.

       Throneberry brought this federal action against the Hospital, alleging the
Hospital violated the FMLA by interfering with her FMLA rights, failing to reinstate
her, and retaliating against her for taking FMLA leave. At the close of opening
statements at her jury trial, Throneberry voluntarily dismissed her retaliation claim.
The district court submitted Throneberry’s interference and reinstatement claims to
the jury. The jury found in favor of Throneberry on her interference claim, and found
in the Hospital’s favor on the reinstatement claim.2 Because the jury found in
Throneberry’s favor on at least one claim, the verdict form then asked the jury two
questions: “Question No. 1: Has it been proved by the preponderance of the evidence
that defendant would have discharged plaintiff regardless of her exercise of her rights
under the FMLA?” and “Question No. 2: Has it been proved by the preponderance
of the evidence that plaintiff would not have been employed by the defendant at the



      2
        The jury found Throneberry successfully proved the following elements on her
interference claim: “First, that the plaintiff had depression, panic attacks and anxiety;
second, that depression, panic attacks and anxiety were serious health conditions;
And, third, that the plaintiff was absent from work because of that serious health
condition; Fourth, that the plaintiff gave defendant appropriate notice of her need to
be absent from work; And, fifth, that the defendant interfered with the plaintiff’s
rights under the Family Medical Leave Act.” The Hospital admitted Throneberry
satisfied the first three elements, so Throneberry was required to prove only the last
two elements.

                                          -4-
time job reinstatement would have been requested?”3 The jury answered yes to both
questions.4 Based on the jury’s verdict, the district court entered judgment in the
Hospital’s favor.

       After the district court entered judgment, Throneberry filed a Motion for a New
Trial, Judgment as a Matter of Law, and to Alter or Amend, arguing the district court
erroneously submitted a same decision instruction and an after-acquired evidence
instruction to the jury. Throneberry also urged the district court to allow a new trial
on damages. Finally, Throneberry asserted that, because the jury found the Hospital
had interfered with Throneberry’s substantive FMLA rights, the court was required
to amend its judgment to award nominal damages to Throneberry.

      In ruling on Throneberry’s post-trial motion, the district court recognized
“intent is immaterial in an interference claim.” Quoting Smith v. Diffee Ford-
Lincoln-Mercury, Inc., 

, 960-61 (10th Cir. 2002) (citing 29 C.F.R.
§ 825.216(a)), the district court also recognized Throneberry, simply by exercising
her FMLA rights, had “no greater rights than an employee who remains at work.”
Relying on Smith, the district court concluded “an employee exercising her rights
under the FMLA may be dismissed, but only if the dismissal would have occurred


      3
       Throneberry had earlier moved the court not to submit a same decision
instruction or an after-acquired evidence instruction to the jury on the interference
claim, but the district court denied the motion.
      4
        The verdict form also instructed the jury to answer the following question, if
the jury answered either of the first two questions in the negative: “Question No. 3:
Has it been proved by a preponderance of the evidence that, even if plaintiff had not
been discharged on December 31, 1998, defendant would have terminated plaintiff’s
employment by December 31, 1998 because she failed to perform her job duties and
engaged in non-work related activities during regular working hours?” Because the
jury answered the first two questions in the affirmative, the jury did not consider this
question.

                                          -5-
regardless of the employee’s request for or taking of FMLA leave.” Based on this
understanding of the FMLA, the court found “it properly instructed the jury on the
same decision issue.” Similarly, the court rejected Throneberry’s attack on the after-
acquired evidence instruction for two reasons. First, the court reiterated Throneberry
enjoyed no greater rights under the FMLA than an employee who remained at work,
so the court decided “the jury could consider evidence establishing that [Throneberry]
would not have been employed by the [Hospital] at the time job reinstatement would
have been requested.” Second, the court noted “the jury did not reach the after-
acquired evidence instruction.” Finally, the district court denied Throneberry’s
requests for a new trial and nominal damages.

       On appeal, Throneberry contends (1) “the district court erred in giving a same
decision/after-acquired evidence instruction to the jury”; and (2) “the district court
erred in denying [her] motion for a new trial, judgment as a matter of law, and to alter
or amend.”

II.    DISCUSSION
       A.     Interference Claim under the FMLA
       Throneberry concedes the district court properly gave the same decision
instruction as it related to the reinstatement claim. However, Throneberry argues the
district court erroneously gave the same decision instruction, and the after-acquired
evidence instruction for that matter, relating to the interference claim. We review the
district court’s jury instructions for an abuse of discretion. Campos v. City of Blue
Springs, 

, 551 (8th Cir. 2002). When “reviewing alleged errors in jury
instructions,” we ask “whether the instructions, taken as a whole and viewed in light
of the evidence and applicable law, fairly and adequately submitted the issues in the
case to the jury.” Jones v. Swanson, 

, 734 (8th Cir. 2003). As “long as
the jury is correctly instructed on the substantive issues in the case,” we commit to
the sound discretion of the district court the actual “form and language of jury



                                          -6-
instructions.” 

reverse on the basis of instructional error only if [we
conclude] the error affected the substantial rights of the parties.” 

the FMLA mandates strict liability for an employer
whenever it interferes with an employee’s FMLA rights. As a matter of first
impression for our circuit, we must decide whether the FMLA imposes strict liability
for all interferences with FMLA rights, or whether the FMLA condones lawful
interference with FMLA rights. Rejecting Throneberry’s interpretation of the FMLA,
we hold an employer who interferes with an employee’s FMLA rights will not be
liable if the employer can prove it would have made the same decision had the
employee not exercised the employee’s FMLA rights.

       The FMLA entitles eligible employees to take a total of twelve weeks of leave
during a twelve-month period due to “a serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(D). When an employee completes her FMLA leave, she is
generally entitled to be restored to the position she occupied before she took leave.
See 29 U.S.C. § 2614(a)(1). However, an employee’s restoration rights are limited,
such that no employee taking FMLA leave is entitled to “any right, benefit, or
position of employment other than any right, benefit, or position to which the
employee would have been entitled had the employee not taken the leave.” 29 U.S.C.
§ 2614(a)(3)(B).

       Because the FMLA grants valuable leave and restoration rights to eligible
employees, it also secures these rights against unlawful infringement. The FMLA
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 violation of this provision creates what is commonly known as the
interference theory of recovery. 29 U.S.C. § 2617; see, e.g., 

.
The FMLA also makes it “unlawful for any employer to discharge or in any other

                                        -7-
manner discriminate against any individual for opposing any practice made unlawful
by” the FMLA. 29 U.S.C. § 2615(a)(2). A violation of this provision creates what
is commonly known as the discrimination theory of recovery. 29 U.S.C. § 2617; see,
e.g., 

.

      Throneberry essentially asserts her interference theory of recovery means the
Hospital absolutely had no authority to interfere with her FMLA leave. Although the
FMLA focuses on guaranteed leave, as Throneberry correctly points out, the second
valuable FMLA guarantee is a right to restoration after FMLA leave ends.
Throneberry’s apparent assertion that the two guarantees are not connected is where
her theory collapses. The FMLA simply does not force an employer to retain an
employee on FMLA leave when the employer would not have retained the employee
had the employee not been on FMLA leave. This conclusion is supported by the
FMLA’s plain language and structure, the Department of Labor’s implementing
regulations, a persuasive Tenth Circuit decision, and uncluttered logic.

        The FMLA is structured to grant leave rights to qualified employees, but the
FMLA also grants the all-important right to restoration upon completion of the leave.
29 U.S.C. § 2614(a)(1)(A). However, an employee who takes FMLA leave does not
have unlimited restoration rights upon returning from leave. As mentioned above, the
FMLA specifically states an employee taking FMLA leave is not entitled to “any
right, benefit, or position of employment other than any right, benefit, or position to
which the employee would have been entitled had the employee not taken the leave.”
29 U.S.C. § 2614(a)(3)(B); see also 29 C.F.R. § 825.216(a) (“An employee has no
greater right to reinstatement or to other benefits and conditions of employment than
if the employee had been continuously employed during the FMLA leave period. An
employer must be able to show that an employee would not otherwise have been
employed at the time reinstatement is requested in order to deny restoration to
employment.”). Thus, the FMLA envisions employees taking leave and returning to
work as valuable rights working in concert with each other, i.e., the FMLA does not

                                         -8-
require an employer to retain an employee on FMLA leave if that employee has no
right to return to work. The reason is the FMLA does not provide leave for leave’s
sake, but instead provides leave with an expectation an employee will return to work
after the leave ends. Therefore, the FMLA’s plain language and structure dictates
that, if an employer were authorized to discharge an employee if the employee were
not on FMLA leave, the FMLA does not shield an employee on FMLA leave from
the same, lawful discharge.

       This interpretation also tracks the Department of Labor’s interpretation of the
FMLA. The Department of Labor, acting under its congressional authority to
implement the FMLA, see 29 U.S.C. § 2654, permits employers to lawfully interfere
with employees’ rights to take FMLA leave. For example, the FMLA regulations
state, “If an employee is laid off during the course of taking FMLA leave and
employment is terminated, the employer’s responsibility to continue FMLA leave,
maintain group health plan benefits and restore the employee cease at the time the
employee is laid off, provided the employer has no continuing obligations under a
collective bargaining agreement or otherwise.” 29 C.F.R. § 825.216(a)(1); see also
29 C.F.R. § 825.214(b) (“If the employee is unable to perform an essential function
of the position because of a physical or mental condition, including the continuation
of a serious health condition, the employee has no right to restoration to another
position under the FMLA.”); 29 C.F.R. § 825.216(b) (“If an employee was hired for
a specific term or only to perform work on a discrete project, the employer has no
obligation to restore the employee if the employment term or project is over and the
employer would not otherwise have continued to employ the employee.”). But see
29 C.F.R. § 825.702 (discussing interaction between the FMLA and the Americans
with Disabilities Act (ADA)).5 However, the regulations make clear that, if an

      5
       We note this appeal does not present issues involving the ADA. Thus, we do
not comment on whether the Hospital might have violated the ADA in this case. See,
e.g., 29 C.F.R. § 825.214(b) (recognizing that, in certain circumstances, an
employer’s conduct will not violate the FMLA, but “the employer’s obligations may

                                         -9-
employer chooses to interfere with an employee’s FMLA leave rights, the “employer
would have the burden of proving that an employee would have been laid off during
the FMLA leave period and, therefore, would not be entitled to restoration.” 29
C.F.R. § 825.216(a)(1). As long as an employer can show a lawful reason, i.e., a
reason unrelated to an employee’s exercise of FMLA rights, for not restoring an
employee on FMLA leave to her position, the employer will be justified to interfere
with an employee’s FMLA leave rights.

       In addition to finding support to reject a strict liability standard in the FMLA’s
plain language and in the Department of Labor’s regulations, we, like the district
court, find support in the Tenth Circuit’s decision in Smith. The employer in Smith
discharged an employee on FMLA leave. After the employee prevailed on her
interference claim before a jury and the district court entered judgment in the
employee’s favor, the employer appealed, contending the district court erroneously
instructed the jury that the employer bore the burden to prove it would have
discharged the employee regardless of the employee exercising her FMLA rights.

       The Tenth Circuit initially noted an employee can prove interference with an
FMLA right regardless of the employer’s intent. 

. However,
the court recognized “an employee who requests FMLA leave would have no greater
protection against his or her employment being terminated for reasons not related to
his or her FMLA request than he or she did before submitting the request.” 

Given that understanding, the Tenth Circuit held “an employee
may be dismissed, preventing her from exercising her statutory right to FMLA
leave–but only if the dismissal would have occurred regardless of the employee’s
request for or taking of FMLA leave.” 

(citing Gunnell v. Utah Valley State

be governed by the” ADA) (citing 29 C.F.R. § 825.702); Tory L. Lucas, Disabling
Complexity: The Americans with Disabilities Act of 1990 and Its Interaction with
Other Federal Laws, 38 Creighton L. Rev. 871, 876-91 (2005) (discussing the
interaction between the ADA and the FMLA).

                                          -10-
Coll., 

, 1262 (10th Cir. 1998) (citing 29 C.F.R. § 825.216(a)); see
generally O’Connor v. PCA Family Health Plan, Inc., 

, 1352-55 (11th
Cir. 2000) (implicitly holding an employer who discharged an employee on FMLA
leave was not liable under an interference theory under the FMLA because the
employer showed it would have discharged the employee had she not been on FMLA
leave). Thus, the Tenth Circuit allows an employee to “prevail under an
[interference] theory if she was denied her substantive rights under the FMLA for a
reason connected with her FMLA leave.” 

. However, the
Tenth Circuit further made clear “a reason for dismissal insufficiently related to
FMLA leave will not support recovery under an interference theory.” 

the issue of whether an employer is strictly liable for interfering
with an employee’s FMLA leave, the Tenth Circuit then addressed “which party [in
an interference case] bears the burden of proving whether the employee would or
would not have been dismissed for reasons unrelated to her FMLA leave.” 

Rejecting the employer’s attempt to place that burden on the employee, the Tenth
Circuit held the Department of Labor’s implementing regulation, 29 C.F.R.
§ 825.216(a), “validly shifts to the employer the burden of proving that an employee,
laid off during FMLA leave, would have been dismissed regardless of the employee’s
request for, or taking of, FMLA leave.” 

.

       We find the Tenth Circuit’s reasoning in Smith relating to interference claims
convincing. We also note Throneberry recognizes the Tenth Circuit’s decision in
Smith is the only decision from a circuit court clearly addressing whether the FMLA
mandates strict liability for any interference with an employee’s FMLA rights. By
adopting the Tenth Circuit’s holding in Smith, our decision today avoids a circuit
split.

        Logic also dictates we interpret the FMLA to preclude the imposition of strict
liability whenever an employer interferes with an employee’s right to take FMLA

                                          -11-
leave. We initially note every discharge of an employee while she is taking FMLA
leave interferes with an employee’s FMLA rights. However, the mere fact of
discharge during FMLA leave by no means demands an employer be held strictly
liable for violating the FMLA’s prohibition of interfering with an employee’s FMLA
rights. Examples should illuminate this conclusion. If an employee on FMLA leave
harasses a supervisor or a co-worker, Throneberry would contend the employer must
retain that harassing employee until the FMLA leave ends. That would be a senseless
proposition. The FMLA makes clear the harassing employee enjoys no greater rights
while on FMLA leave than had the employee not taken FMLA leave. Thus, if the
employer would have discharged the employee for harassing a supervisor or co-
worker if the employee were not on FMLA leave, then the employer would be
justified in discharging the employee for harassment while the employee was on
FMLA leave. To be clear, the employer in such a circumstance would not have to
provide the harassing employee with FMLA leave rights and then wait until the
FMLA leave ends before deciding to discharge the employee for harassment.6

       Another example of an employer’s lawful ability to interfere with an
employee’s FMLA leave rights might be when an employer goes out of business
while an employee is on FMLA leave. Discharging the employee on FMLA leave
clearly interferes with the employee’s rights under the FMLA. However, holding the
employer strictly liable for a violation of the FMLA in such a circumstance would be
preposterous.

      A final example of why we cannot adopt Throneberry’s strict liability theory
involves taking Throneberry’s own conduct in this case to the extreme. The evidence

      6
       Our conclusion is faithful to the FMLA’s purpose to accomplish its goals “in
a manner that accommodates the legitimate interests of employers.” 29 U.S.C.
§ 2601(b)(3). Holding an employer strictly liable for violating the FMLA by
discharging a harassing employee on FMLA leave would not balance the legitimate
interests of the employer with the FMLA’s leave-granting mandate.

                                       -12-
showed Throneberry disturbed the workplace before she decided to take leave.
During her FMLA leave, Throneberry returned to her workplace and caused
additional workplace disturbance. Under the theory Throneberry advocates on
appeal, she had the unrestricted right to visit and disturb her workplace every day
during her FMLA leave without fear that the Hospital could “interfere” with her
FMLA rights. Indeed, the thrust of Throneberry’s interpretation of the FMLA would
mandate that the Hospital be strictly liable if it discharged her for constantly
disrupting the workplace during her FMLA leave. Interpreting the FMLA differently,
we faithfully apply the FMLA’s caution that an employee on FMLA leave has no
greater rights than the employee would have enjoyed had she not taken FMLA leave.
Strict liability contravenes this statutory caution.

       Thus, we conclude the district court appropriately instructed the jury on the
interference claim and correctly placed the burden on the Hospital to prove it would
have discharged Throneberry regardless of her taking FMLA leave.

       Having concluded the district court did not err in instructing the jury, we still
must determine whether the evidence supports the district court giving the challenged
instructions, and, ultimately, whether the evidence supports the jury’s verdict that the
Hospital would have discharged Throneberry even if she had not taken FMLA leave.
Resolving these issues is not easy, as the reasons for, and the timing of, Throneberry’s
discharge were murky at trial. Notwithstanding the murkiness of the evidence, we
conclude the district court rightly allowed the jury to decide whether the Hospital had
a lawful reason for interfering with Throneberry’s FMLA leave, i.e., whether the
Hospital discharged Throneberry based on her exercise of her FMLA rights.

      The evidence in the record supports the jury’s finding that the Hospital would
have discharged Throneberry had she not exercised her FMLA rights. Indeed, the
evidence suggests the Hospital discharged Throneberry because of her work
performance problems together with her disruptive conduct after she went on FMLA

                                         -13-
leave. Wood testified no other employee had ever dressed or acted like Throneberry
did in early August 1998. Given the previous complaints about Throneberry’s job
performance, Throneberry’s negative impact on the work environment, and
Throneberry’s conduct during her FMLA leave, a jury reasonably could conclude the
Hospital had the right to discharge Throneberry, because the Hospital would have
discharged Throneberry regardless of whether she exercised her FMLA rights.

       Finally, we note Throneberry has the mistaken belief she prevailed on her
interference claim before the jury. What actually happened at trial is Throneberry
proved the Hospital interfered with her FMLA leave rights, but then the Hospital
proved it lawfully interfered with those rights. Thus, it cannot fairly be said that
Throneberry prevailed on her interference claim in front of the jury.7

       B.     Post-Trial Motion
       Throneberry’s argument on appeal that the district court erroneously denied her
post-trial motion depends upon her succeeding in the first issue discussed above: “As
a result of [the same decision and after-acquired instructions] going to the jury,
Throneberry argued [to the district court] that she was entitled to a new trial on
damages, judgment as a matter of law on the issue that the same decision/after-
acquired evidence defenses are not recognized as a defense for substantive FMLA


      7
        We urge district courts in these types of cases not to leave open dates when
issuing a same decision instruction to juries. Not surprisingly, the defining moment
to determine whether an employer unlawfully interfered with an employee’s FMLA
rights is when the employer actually interferes with the employee’s FMLA rights (in
this case, that moment was when the Hospital forced Throneberry to resign). In
interference cases under the FMLA, we believe district courts must ensure the jury
understands two points: first, an employer is not strictly liable any time it interferes
with an employee’s FMLA leave, i.e., the employer is only liable for unlawful
interference with an employee’s FMLA rights; and second, the crucial point for
determining whether the employer would have made the same decision is the date on
which the employer actually interfered with an employee’s FMLA rights.

                                         -14-
claims, and for an order amending the judgment to reflect nominal damages.”
Because we (1) reject Throneberry’s proposed interpretation of the FMLA, (2) hold
the district court properly instructed the jury, and (3) conclude sufficient evidence
supports the jury’s verdict in the Hospital’s favor, we likewise reject Throneberry’s
argument that the district court erroneously denied her post-trial motion.

III.  CONCLUSION
      For the foregoing reasons, we affirm the district court’s entry of judgment in
favor of the Hospital.
                       ______________________________




                                        -15-