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ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE John P. Reed Anna M. Hearn Hammond, Indiana Thomas F. Macke Valparaiso, Indiana Gregory S. Reising Gary, Indiana ATTORNEY FOR AMICUS CURIAE NATIONAL EMPLOYMENT LAWYERS ASSOCIATION Tae Sture Indianapolis, Indiana ______________________________________________________________________________ In the Indiana Supreme Court _________________________________ No. 45S03-0809-CV-482 GARY COMMUNITY SCHOOL CORPORATION, Appellant/Cross-Appellee (Defendant below), v. TOM POWELL, Appellee/Cross-Appellant (Plaintiff below). _________________________________ Appeal from the Lake Superior Court, No. 45D10-0306-PL-58 The Honorable John R. Pera, Judge The Honorable Thomas Webber, Sr., Judge Pro Tempore _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-0701-CV-17 _________________________________ May 19, 2009 Boehm, Justice. We hold that an employee filling multiple positions with the same employer is eligible for leave under the federal Family and Medical Leave Act if that employee’s total service is sufficient to qualify, even if service in either position alone does not qualify. We hold that a ―front pay‖ award for future lost wages should be discounted to its present value. We otherwise affirm the judgment of the trial court. Facts and Procedural History Tom Powell has taught math at Lew Wallace High School in Gary since 1987. From 1987 to 1999, Powell served as an assistant football coach, and in 2000, he was promoted to head football coach. Beginning in 1995, Powell also served as assistant basketball coach at Lew Wallace. For the 2001–2002 school year, Powell was under contract as a math teacher, night school teacher, and head football coach. On July 31, 2001, the second day of football practice, Powell developed a blood clot in his leg that required hospitalization. After three weeks of leave, he returned to work, but reinjured his leg and required another four weeks of leave. On October 1, Powell returned to his positions as math teacher and night school teacher, but learned that the board of Gary Community School Corporation (―GCSC‖) had fired him from his head football coaching position and replaced him with the assistant coach. Powell complained to the Lew Wallace principal and also spoke with a reporter from the Gary Post- Tribune. On October 13, the Post-Tribune published an article reporting that Powell had been fired after taking medical leave with an injured leg. After the football season, Powell learned that he would no longer be assistant basketball coach. Powell applied for the head football coaching position in 2002 and 2003 and was rejected both times. In June 2003, Powell brought this action alleging that GCSC violated the Family and Medical Leave Act (―FMLA‖) by failing to restore him as coach for the 2001 season and by retaliating against him for taking FMLA leave by rejecting him as head football coach in subsequent years. Powell and GCSC both moved for summary judgment on several issues, including whether Powell’s leave was covered by the FMLA. The trial court granted summary judgment for Powell on this issue and concluded that GCSC had violated the FMLA by failing to reinstate Powell as head football coach in 2001. Damages for failure to reinstate remained for trial along with Powell’s separate claim that GCSC had retaliated for taking FMLA leave. The trial resulted in an award of damages totaling $280,200.20 for the failure to reinstate and the 2 retaliation claims. The trial court reduced the award to $188,919.29 and added prejudgment interest of $18,274 and attorneys fees of $125,000. The Court of Appeals reversed, concluding that Powell was not eligible for FMLA leave. Gary Cmty. Sch. Corp. v. Powell, 881 N.E.2d 57, 58 (Ind. Ct. App. 2008), reh’g denied. We granted transfer. I. The Family and Medical Leave Act The Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601–54 (2008), entitles certain employees to twelve weeks of unpaid leave for the employee’s serious health condition, the birth or adoption of a child, or the employee’s need to care for a seriously ill family member. Id. § 2612. Following a qualified leave, an eligible employee is entitled to be restored to the former position or one with equivalent benefits, pay, and conditions of employment. Id. § 2614(a)(1). The employee may sue in federal or state court for damages, equitable relief, and fees if an employer interferes with the employee’s FMLA rights or retaliates for the exercise of those rights. Id. §§ 2615, 2617. GCSC contends that (1) Powell was not an eligible employee with respect to his head football coaching position and (2) insufficient evidence supported the jury’s determination that GCSC retaliated against Powell. A. Powell’s FMLA Eligibility Under the FMLA, an ―eligible employee‖ is entitled to be restored to ―the position of employment held by the employee when the leave commenced‖ or ―an equivalent position.‖ 29 U.S.C. § 2614(a)(1). One of the requirements of an ―eligible employee‖ is employment by the employer ―for at least 1,250 hours of service with such employer during the previous twelve- month period.‖ Id. § 2611(2)(A). In the twelve months before his leave, Powell served more than 1,250 hours in his capacity as a math teacher, but fewer than 1,250 hours as head football coach. Powell asserts that his total hours of service to GCSC required his reinstatement in all capacities. GCSC argues that Powell’s service as teacher and coach are to be viewed separately for purposes of the FMLA, so Powell was entitled to reinstatement as a teacher, but not as a coach. 3 Whether an employee’s FMLA eligibility is determined by the employee’s entire service to the employer or separately for each position is an issue of first impression. The trial court concluded that Powell was an eligible employee for purposes of both his teaching and coaching positions. The Court of Appeals reversed, holding that the issue is controlled by the parties’ treatment of the jobs as unified or separate. Gary Cmty. Sch. Corp. v. Powell, 881 N.E.2d 57, 58 (Ind. Ct. App. 2008). The Court of Appeals concluded that because the parties ―treated the jobs as entirely separate and independent of one another,‖ they are separate for the purposes of FMLA coverage. Id. Because this issue is a question of law, we review it de novo. For the reasons explained below, we hold that an employee filling multiple positions with the same employer is eligible for FMLA leave as to all positions if that employee has completed 1,250 total hours of service to that employer in the twelve months preceding the request for leave. Because this issue is purely an issue of statutory interpretation, we look first to the language of the FMLA. The parties are the Gary Community School Corporation—an ―employer‖ subject to the FMLA—and Powell as an employee. An ―employee‖ is defined in the FMLA simply as ―any individual employed by an employer.‖ 29 U.S.C. §§ 203(e)(1), 203(d), 2611(3). Employers are defined as ―any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.‖ Id. § 2611(4)(A)(i). Only an ―eligible employee‖ may assert claims under the FMLA. The definition of ―eligible employee‖ in § 2611(2) requires: (1) employment for at least 12 months by the employer from whom leave was requested, id. § 2611(2)(A)(i), and (2) employment for at least 1,250 hours of service by that employer during the previous 12-month period, id. § 2611(2)(A)(ii). None of these definitions suggests that separate positions held by the employee are relevant. Importantly, the test for eligibility is phrased in terms of ―hours of service‖ to an ―employer,‖ not service in any particular position. In short, the definitions are entity specific, not job specific, and the service requirements for an eligible employee are in terms of overall service, not service in any specific position. Our conclusion that the 1,250-hour requirement applies to the employee’s overall service to the employer is supported by the legislative history of the FMLA and applicable federal regulations. Committee reports accompanying passage of the FMLA instruct that the ―minimum 4 hours of service requirement is meant to be construed broadly.‖ H.R. Rep. No. 103-8(I), at 35 (1993); S. Rep. No. 103-3, at 25 (1993). The FMLA directs that regulations under the Fair Labor Standards Act (―FLSA‖), 29 U.S.C. §§ 201–19 (2008), apply under the FMLA for determining hours of service. § 2611(2)(C). Under the FLSA, to determine hours worked for purposes of overtime compensation ―the employer must total all the hours worked by the employee for him in that workweek (even though two or more unrelated job assignments may have been performed) . .‖ 29 C.F.R. § 778.103 (2008). Similarly, FMLA regulations provide that the determination of hours worked ―is not limited by methods of recordkeeping, or by compensation agreements that do not accurately reflect all the hours an employee has worked for or been in service to the employer. Any accurate accounting of actual hours worked under FLSA’s principles may be used.‖ Id. § 825.110(c)(1); see also H.R. Rep. 103-8(I), at 35 (same); S. Rep. No. 103-3, at 25 (same). Finally, the regulations provide that ―[n]ormally the legal entity which employs the employee is the employer under FMLA. Applying this principle, a corporation is a single employer rather than its separate establishments or divisions.‖ 29 C.F.R.

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