United States Court of Appeals
                  For the Eighth Circuit
              ___________________________

                      No. 15-1183
              ___________________________

                           Jamie Smith

             lllllllllllllllllllll Plaintiff - Appellee

                                 v.

AS America, Inc., doing business as American Standard Brands

            lllllllllllllllllllll Defendant - Appellant
               ___________________________

                      No. 15-1665
              ___________________________

                           Jamie Smith

             lllllllllllllllllllll Plaintiff - Appellant

                                 v.

AS America, Inc., doing business as American Standard Brands

            lllllllllllllllllllll Defendant - Appellee
              ___________________________

                      No. 15-1832
              ___________________________

                           Jamie Smith

             lllllllllllllllllllll Plaintiff - Appellee
                                            v.

          AS America, Inc., doing business as American Standard Brands

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                     Appeals from United States District Court
                    for the Western District of Missouri - Joplin
                                  ____________

                            Submitted: December 17, 2015
                                Filed: July 14, 2016
                                   ____________

Before MURPHY, BENTON, and KELLY, Circuit Judges.

                                    ____________

KELLY, Circuit Judge.

       AS America, Inc. d/b/a American Standard Brands (ASB) denied Thomas
Smith’s request for intermittent Federal Medical Leave Act (FMLA) leave and fired
him after he missed work. Following a bench trial, the district court found ASB
violated Smith’s rights under the FMLA and awarded Smith actual and liquidated
damages, attorney’s fees, expenses, and prejudgment interest. ASB appeals the
court’s decision regarding liability and its awards of liquidated damages and
attorney’s fees.1 Jamie Smith2 cross-appeals the district court’s finding limiting the


      1
        ASB also appeals the court’s May 12, 2015, order denying its April 13, 2015,
post-trial motion for reconsideration, or in the alternative, motion to amend the
court’s order granting attorney’s fees, expenses, and pretrial interest, and altering its
factual finding regarding Thomas Smith’s probate case. ASB makes no meaningful

                                           -2-
amount of her damages under the after-acquired evidence doctrine. Having
jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s decision regarding
liability, liquidated damages, and attorney’s fees. Because we find the district court
made a clearly erroneous factual finding as to ASB under the after-acquired evidence
doctrine, however, we reverse and remand the court’s decision limiting damages.

                                   I. Background

       Thomas Smith worked at the ASB plant in Nevada, Missouri. His job required
him to manually lift porcelain toilet bowls, tanks, urinals, and sinks on and off the
kiln and refire carts. The bowls weighed an average of fifty pounds and the tanks
weighed around twenty-five pounds. His shift ran from 11:00 p.m. to 7:00 a.m.
Friday through Tuesday, and he was off on Wednesdays and Thursdays. ASB
employees are fired when they reach 8 absences in a twelve-month period under
ASB’s no-fault attendance policy.

       In January 2011, Smith missed three days of work due to sinusitis and lower
back pain. He went to an urgent care clinic and was prescribed muscle relaxants and
advised to get physical therapy. Smith applied for FMLA leave and submitted a
certification form that had been completed by a nurse practioner at the clinic. Smith’s




argument regarding its appeal of the court’s May 12, 2015 order in its opening or
reply briefs and so we deem the claim waived. Jenkins v. Winter, 

, 751
(8th Cir. 2008).
      2
       Thomas Smith died in a car accident on March 3, 2014. His wife, Jamie, as
the personal representative of his estate, was substituted as the plaintiff in the FMLA
lawsuit on July 7, 2014.

                                         -3-
absentee records for January 9 through 11 contain a notation “FMLA per C. Morris”3
and his absence was recorded as FMLA leave.

      On Friday, February 5, 2011, before his shift started, Smith hurt his back
plowing snow. That night, he reported to work but left early due to back pain. On
Saturday, February 6, and Sunday, February 7, Smith called ASB to report he could
not work but that his absence should be covered by the intermittent FMLA leave
granted in January.

       Smith went to the urgent care clinic on Monday, February 7, and saw a nurse
practitioner. He was advised to take anti-inflammatory drugs and the muscle
relaxants he had been prescribed in January and to get physical therapy. He was also
given a note from the nurse practioner to submit to ASB. The note stated: “Patient
seen in clinic 2/7/11. Please excuse from 2/8/11 & needs FMLA form to be
completed for lumbar strain.” Smith called ASB before his next shift started to report
that he would be absent and that the absence should be covered by the intermittent
FMLA leave approved in January.

      On Tuesday, February 8, 2011, Smith went to the ASB plant to submit the note
from the nurse practioner. Jackie Nall4 met with him and gave him documents
assessing him three points for leaving his February 6 shift early and missing his
February 7 and 8 shifts. She also gave him a document dated February 8, 2011, that
purportedly denied his January request for FMLA leave. ASB then fired Smith for
having 8 absences.



      3
      Chris Morris was the Human Resources Generalist responsible for
administering FMLA at the Nevada plant in January 2011.
      4
      Jackie Nall had replaced Morris as the Human Resources Generalist at the
Nevada plant.

                                         -4-
       On February 11, 2011, Smith submitted a new application for FMLA leave and
an FMLA certification form filled out by the clinic nurse practitioner. The
certification form noted Smith had been prescribed muscle relaxants for a
thoracolumbar spasm and referred for physical therapy. ASB did not request any
additional information from Smith concerning his February 11 FMLA application but
did not grant him FMLA leave and did not reinstate him. Smith then sued ASB,
claiming wrongful interference with his FMLA rights.

       At Thomas Smith’s deposition, ASB learned that he had been arrested and
jailed on July 13, 2011. The parties disputed when Smith was released from jail and
how many absences he would have accrued as a result of being jailed had he still been
employed at ASB. Following trial, the court found ASB proved that Smith had not
been released from jail until July 20, 2011, and thus would have reached 8 absences
on July 20, 2011. The court awarded Jamie Smith $13,865.84 in lost pay up to July
20, 2011, and $13,865.84 in liquidated damages. The court also granted Smith
$159,944.66 in attorney’s fees and costs.

                                  II. Discussion

       The FMLA entitles an eligible employee to twelve weeks of unpaid leave
during any twelve-month period for 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). To succeed on a claim of FMLA interference, an employee
must show she was eligible for FMLA leave, the employer knew she needed FMLA
leave, and the employer denied her an FMLA benefit to which she was entitled.
Hasenwinkel v. Mosaic, 

, 432 (8th Cir. 2015). FMLA interference
includes “refusing to authorize FMLA leave.” Stallings v. Hussman Corp., 

, 1050 (8th Cir. 2006) (quoting 29 C.F.R. § 825.220(b)).




                                         -5-
      A. ASB Appeal

       ASB asserts the district court erred in finding Smith qualified for FMLA leave
because Thomas did not have a “serious health condition” within the meaning of the
FMLA. Whether an employee has a serious health condition is a mixed question of
fact and law. Thorson v. Gemini, Inc. 

, 377 (8th Cir. 2000). Following
a bench trial, we review a district court’s findings of fact for clear error and its legal
conclusions de novo. Schaub v. VonWald, 

, 923 (8th Cir. 2011); see
also Fed. R. Civ. P. 52(a). “A finding is clearly erroneous when ‘although there is
evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.’” 

v. City of Bessemer City, 

, 573 (1985)). We may not reverse
the district court’s findings of fact simply because we would have decided the case
differently. 

evidence could lead to two plausible conclusions, the district
court’s choice between them cannot be clearly erroneous. 

defines “‘serious health condition’ as ‘an illness, injury,
impairment or physical or mental condition that involves’ inpatient care or
‘continuing treatment by a health care provider.’” Dalton v. ManorCare of W. Des
Moines IA, LLC, 

, 960 (8th Cir. 2015) (quoting 29 U.S.C. § 2611(11)).
While the FMLA statute does not further define “continuing treatment,” the
Department of Labor’s regulations’ definition of “continuing treatment” includes
“chronic conditions” and periods of “incapacity and treatment.” 29 C.F.R.
§§ 825.115(a), 825.115(c). “We have previously observed that although conditions
like the common cold or the flu will not routinely satisfy the requirements of a
‘serious health condition,’ absences resulting from such illnesses are protected under
FMLA when the regulatory tests are met.” Rankin v. Seagate Techs., Inc., 

, 1147 (8th Cir. 2001) (citing 

).




                                           -6-
       The district court found Smith’s February absences met the objective regulatory
tests for both a chronic condition and a period of incapacity and treatment. The
FMLA regulations define a chronic condition as one that “(1) [r]equires periodic
visits (defined as at least twice a year) for treatment by a health care provider,” (2)
“[c]ontinues over an extended period of time (including recurring episodes of a single
underlying condition),” and (3) “[m]ay cause episodic rather than a continuing period
of incapacity (e.g., asthma . . . etc.).” 29 C.F.R. § 825.115(c). ASB concedes both
certification forms Smith submitted in January and February 2011 track the language
of 29 C.F.R. § 825.115(c), but argues that Smith’s back pain cannot be considered a
chronic condition because his two visits to the urgent care clinic were the only two
times he ever sought medical treatment for his back.

       “[The] operative time for determining whether a particular condition qualifies
as a serious health condition is the time that leave is requested or taken.” See Hansler
v. Lehigh Valley Hosp. Network, 

, 156 (3d Cir. 2015) (citing Navarro
v. Pfizer Corp., 

, 96 (1st Cir. 2001)). “There is no requirement in the
statute that an employee be diagnosed with a serious health condition before
becoming eligible for FMLA leave.” Stekloff v. St. John’s Mercy Health Sys., 

, 863 (8th Cir. 2000). In fact, the regulations allow FMLA leave for a
chronic condition even when the employee “does not receive treatment from a health
care provider during the absence,” such as when an asthmatic person is unable to
report to work because of an asthma attack. 

C.F.R. § 825.115(f)).
The FMLA regulations for a chronic condition require only two visits per year to a
health care provider for treatment. 29 C.F.R. § 825.115(c)(1). The record shows
Smith had two visits to the urgent care clinic for lower back pain. That Smith did not
seek medical treatment for lower back pain before January 2011 or after being fired
by ASB is not conclusive of whether Smith’s lower back pain qualified as a chronic
condition in February 2011. We cannot say the district court clearly erred in its
factual determination that, at the time ASB fired him, Smith’s back condition met the



                                          -7-
objective criteria of a chronic condition.5 See 

(“Once the
fact-finder has affirmatively found the necessary facts, the conclusion that a plaintiff
had a ‘serious health condition’ is inescapable as a matter of law.”).

       ASB next argues the district court abused its discretion in awarding liquidated
damages because Smith did not show ASB willfully violated the statute. We review
an award of liquidated damages for an abuse of discretion. Marez v. Saint-Gobain
Containers, Inc., 

, 964 (8th Cir. 2012). The FMLA statute states that an
employer who violates the FMLA “shall be liable to any eligible employee affected”
for lost wages, interest, and “an additional amount of liquidated damages equal to the
sum of the amount” of lost wages and interest. 

U.S.C.
§ 2617(a)(1)(A)(iii)) (emphasis added). An employer may avoid a liquidated
damages award if it can show, to the court’s satisfaction, that it “acted with subjective
good faith and that it had an objectively reasonable belief that its conduct did not
violate the law.” Jackson v. City of Hot Springs, 

, 866 (8th Cir. 2014).
However, a court retains the discretion to award liquidated damages even when an
employer shows it acted in good faith and “should exercise its discretion consistently
with the strong presumption under the statute in favor of doubling.” 

(quoting Hite v. Vermeer Mfg. Co., 

, 868–69 (8th Cir. 2006)).

     Contrary to ASB’s claim, the FMLA statute does not require an employee to
show that an employer willfully violated the statute in order to receive liquidated
damages. Rather, liquidated damages are mandatory unless the employer meets its


      5
        The district court also found that Smith’s February 2011 absences qualified
for FMLA leave as a period of incapacity and treatment. See 29 C.F.R. § 825.115(a)
(“period[s] of incapacity of more than three consecutive, full calendar days, and any
subsequent treatment relating to the same condition”). Because we affirm the court’s
conclusion that Smith was entitled to FMLA leave because his back condition
qualified as a chronic condition, we need not address whether his back condition met
the requirements to qualify for FMLA leave for incapacity and treatment.

                                          -8-
burden to show the good faith exception applies. 

(explaining exception to the “otherwise mandatory call for liquidated damages”).
Here, the district court rejected ASB’s claim that it acted in good faith in firing Smith,
pointing to ASB’s attempt in February to rescind the FMLA leave it had granted in
January. The court found ASB knew Smith was attempting to take FMLA leave, but
fired him before it even received, let alone reviewed, Smith’s application for FMLA
leave. The district court acted well within its discretion in awarding liquidated
damages to Smith.

      ASB next challenges the court’s award of attorney’s fees. “The FMLA
provides for reasonable attorney’s fees to be awarded to a prevailing plaintiff.”

(citing 29 U.S.C. § 2617(a)(3)). These fees are “in addition
to any judgment awarded to the plaintiff.” 29 U.S.C. § 2617(a)(3). We review an
award of attorney’s fees for an abuse of discretion. 

. “The
most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Hensley v. Eckerhart, 

, 433 (1983). After determining this
amount, a district court may consider other factors to “adjust the fee upward or
downward, including the important factor of the ‘results obtained.’” 

(quoting 

).

       ASB raises a number of challenges to the award of attorney’s fees. ASB first
argues Smith is not entitled to attorney’s fees at all because she did not disclose the
amount of the fees requested in her response to discovery requests. ASB asserts this
violated Federal Rule of Civil Procedure 26(a)6 and that, pursuant to Federal Rule of




      6
     Rule 26(a) requires a party to provide “a computation of each category of
damages claimed by the disclosing party.” Fed. R. Civ. P. 26(a)(1)(A)(iii).

                                           -9-
Civil Procedure 37(c)(1),7 the district should have excluded evidence of the amount
of attorney’s fees as a sanction. We review a district court’s decision not to exclude
evidence under Rule 37(c)(1) for an abuse of discretion. United States v. STABL,
Inc., 

, 487 (8th Cir. 2015).

      The district court did not abuse its discretion in declining to exclude any
evidence of Smith’s attorney’s fees. A computation of attorney’s fees is simply not
a required disclosure under Federal Rule of Civil Procedure 26(a). As the court
correctly noted, information regarding the amount of attorney’s fees requested had
nothing to do with the merits of the FMLA lawsuit. See Young v. Powell, 

, 566 (8th Cir. 1984) (holding that a claim for attorney’s fees is an issue “uniquely
separable from the cause of action to be proved at trial”). “Regardless of when
attorney’s fees are requested, the court’s decision of entitlement to fees will therefore
require an inquiry separate from the decision on the merits—an inquiry that cannot
even commence until one party has ‘prevailed.’” 

v. New
Hampshire Dep’t. of Emp’t Sec., 

, 451–52 (1984)).

      ASB next argues that Smith should be judicially estopped from claiming more
than $13,268.32 in attorney’s fees based on Jamie Smith’s valuation of the lawsuit
in probate court. In opening Thomas Smith’s estate, Jamie Smith represented to the
probate court that the FMLA lawsuit—the estate’s only asset—was worth $41,000.
“We review the district court’s underlying application of judicial estoppel for an
abuse of discretion.” Jones v. Bob Evans Farms, Inc., 

, 1032 (8th Cir.
2016). We affirm “unless it plainly appears that the court committed a clear error of
judgment in the conclusion it reached upon a weighing of the proper factors.” 

v. Hussmann Corp., 

, 1046–47 (8th Cir. 2006)).

      7
        Rule 37(c)(1) provides: “If a party fails to provide information . . . as required
by Rule 26(a) . . . the party is not allowed to use that information . . . to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

                                          -10-
Judicial estoppel is an equitable doctrine that “prevents a party from prevailing in one
phase of a case on an argument and then relying on a contradictory argument to
prevail in another phase.” New Hampshire v. Maine, 

, 749 (2001). In
determining whether the doctrine should apply, courts are to consider three factors:
(1) whether the party’s later position is “clearly inconsistent” with its prior position;
(2) whether a court was persuaded to accept a prior position “so that judicial
acceptance of an inconsistent position in a later proceeding would create the
perception that either the first or the second court was misled”; and (3) whether the
party claiming inconsistent positions “would derive an unfair advantage or impose
an unfair detriment on the opposing party if not estopped.” 

(internal
quotation marks omitted).

       ASB contends the court erred in its judicial estoppel analysis because Smith’s
valuation of the lawsuit in the probate filing was “clearly inconsistent” with her later
request for attorney’s fees in district court. As the district court noted, it is
questionable whether there is, in fact, any inconsistency between the earlier valuation
and the later request. But even so, ASB offered no evidence to show that the probate
filing was a purposely inaccurate document that misled either court or led to an unfair
advantage or an unfair detriment to either party. See 

(noting judicial estoppel does not apply when a party’s prior position was a good faith
mistake and not part of a scheme to mislead the court). And ASB offered no evidence
to show that the probate filing in any way affected “the integrity of the judicial
process.” E.E.O.C. v. CRST Van Expedited, Inc., 

, 679 (8th Cir. 2012)
(quoting 

) (noting that the doctrine “protects the integrity
of the judicial process”). The district court did not abuse its discretion in declining
to apply judicial estoppel to the facts of this case.

      ASB further asserts the district court abused its discretion in declining to limit
the award of attorney’s fees to fees incurred after Thomas Smith’s death because
Jamie Smith’s attorney did not file a creditor’s claim in Thomas Smith’s probate

                                          -11-
proceeding. According to ASB, under Missouri law, any claim against an estate or
the personal representative of the estate, including a claim for attorney’s fees and
costs, must be filed in Missouri’s probate courts. See Mo. Rev. Stat. § 473.360
(barring claims against the estate, the personal representative, the heirs, devisees, and
legatees of a decedent that are not filed with the probate court within six months of
published notice); § 473.444 (barring all claims against the estate, the personal
representative, the heirs, devisees, and legatees of a decedent one year following date
of decedent’s death whether or not claimant given any notice). Because Smith’s
counsel failed to file a creditor’s claim for the fees and expenses incurred through
Smith’s death on March 3, 2014, ASB asserts, those claims are now extinguished as
a matter of law. ASB asserts the district court abused its discretion by awarding
$96,562.50 in attorney’s fees and costs that are no longer recoverable under Missouri
law. Whether Smith’s attorney can file a claim against Thomas Smith’s estate or
against Jamie Smith (as the estate’s personal representative) in probate court,
however, has no bearing on the amount of attorney’s fees ASB must pay Jamie Smith
as the prevailing plaintiff in this federal lawsuit. The district court did not abuse its
discretion in not limiting Smith’s attorney’s fees to only those incurred after
Thomas’s death.8




      8
       ASB further argues the fees should be reduced because Smith’s attorney put
in an unreasonable number of hours in litigating the case and because the amount of
attorney’s fees is disproportionate to the amount of damages awarded. We have
“explicitly rejected a ‘rule of proportionality’ in civil rights cases because tying the
attorney’s fees to the amount awarded would discourage litigants with small amounts
of damages from pursuing a civil rights claim in court.” Simpson v. Merchants &
Planters Bank, 

, 581 (8th Cir. 2006) (quoting Jackson v. Crews, 

, 1110 (8th Cir. 1989)). The district court did not abuse its discretion.

                                          -12-
      B. Smith Cross-Appeal

        Smith cross-appeals the district court’s application of the after-acquired
evidence doctrine to limit her damages. The after-acquired evidence doctrine applies
when an employee is fired for an unlawful reason but the employer later learns of
other conduct that, by itself, would have resulted in discharge had it come to the
employer’s attention, and it limits the employee’s damages to the period of time
“from the date of the unlawful discharge to the date the new information was
discovered.” McKennon v. Nashville Banner Pub. Co., 

, 362 (1995).
It is the employer’s burden to prove that it would have fired the employee upon
discovery of the evidence. E.E.O.C. v. Dial Corp., 

, 745 (8th Cir. 2006).
The employer must show “that the wrongdoing was of such severity that the
employee in fact would have been terminated on those grounds alone if the employer
had known of it.” 

–63. Here, the district court found
Thomas Smith was jailed until July 20, 2011, and ASB would have fired him for
missing 8 days of work in a twelve-month period under its no-fault attendance policy.
Smith contends the district court clearly erred in finding that Thomas Smith was not
released from jail until July 20, 2011.

       In finding that Thomas Smith was not released until July 20, 2011, the district
court relied on Jamie Smith’s testimony about Exhibit D-22, an exhibit ASB asserts
are court records. Because the court found Exhibit D-22 was not properly
authenticated, however, the court did not admit the exhibit. Referring to Exhibit
D-22, ASB’s attorney asked Jamie Smith: “Am I reading it right? Bond—surety bond
posted on July 20, 2011?” Jamie Smith testified: “Yes, it does state that.” The parties
then entered into the following stipulation: “The parties further agree and stipulate
that D-22 is withdrawn, and all copies of D-22 will be sealed and/or returned to
plaintiff. Plaintiff Jamie Smith’s testimony relating to the dates of Mr. Smith’s
incarceration in July of 2011 is admissible.” The district court acknowledged that
Smith “presented evidence that Mr. Smith acquired the money for bond on July 19

                                         -13-
and was released on July 19”—Exhibit P-489—but found that “a contemporaneously
prepared court record is entitled to more weight than Ms. Smith’s memory of the
event, particularly in light of the very technical nature of the information, making it
less likely to be accurately remembered years later.” Smith v. AS Am., Inc., 

, 1057 (W.D. Mo. 2015).

       Neither party disputes it was ASB’s burden to prove it would have fired
Thomas Smith based on the number of absences he would have accrued from being
jailed. The only evidence in the record regarding the dates of Thomas Smith’s
detention in jail that either party points us to is Exhibit P-48 and Jamie Smith’s
testimony about both that exhibit and ASB’s Exhibit D-22. The parties did stipulate
that “Plaintiff Jamie Smith’s testimony relating to the dates of Mr. Smith’s
incarceration in July of 2011 is admissible.” The court then characterized Jamie
Smith’s testimony about Exhibit D-22 as being based on a “contemporaneously
prepared court record.” But her testimony was less than clear about what information
Exhibit D-22 offered, because there is nothing in Jamie Smith’s testimony or
elsewhere that explains what is meant by a “surety bond” being “posted.” For
example, we can find no evidence in the record that a surety bond is posted on the
same day an inmate is released, either in the county where Thomas Smith was
detained or as a general matter. The court gave Jamie Smith’s limited testimony
about Exhibit D-22 “more weight than Ms. Smith’s memory of the event” and
overlooked the fact that no one had defined the key terms on that exhibit. The court
also gave the testimony about Exhibit D-22, a withdrawn exhibit, more weight than
Exhibit P-48, an admitted exhibit. Exhibit P-48, in combination with other portions
of Jamie Smith’s testimony, placed Thomas Smith’s release date as one day prior on
July 19, 2011. Under these circumstances, we conclude that the district court’s

      9
       When asked what Exhibit P-48 was, Jamie Smith testified: “That would be
the form that we had to fill out when I bonded him out.” She further testified she
signed the form on the date that Thomas Smith was released and that the date on the
form was July 19, 2011.

                                         -14-
finding that ASB met its burden to prove that Thomas Smith was released from jail
on July 20, 2011, was clearly erroneous. See Dial 

(remanding
on issue of back pay because employer did not meet its burden of proving employee
would have been fired based on the after acquired-evidence doctrine).

       For the reasons stated, the judgment of the district court on ASB’s
after-acquired evidence defense vacated and we remand this case for further
proceedings consistent with this opinion.
                      ______________________________




                                       -15-