John F. Cloutier v. Gojet Airlines , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-1322, 19-1773, 19-1823 & 19-3279
JOHN F. C LOUTIER ,
Plaintiff-Appellee, Cross-Appellant,
v.
GOJET A IRLINES , LLC,
Defendant-Appellant, Cross-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16-cv-01146 — Matthew F. Kennelly, Judge.
____________________
A RGUED F EBRUARY 24, 2021 — DECIDED A PRIL 29, 2021
____________________
Before F LAUM , M ANION , and K ANNE, Circuit Judges.
F LAUM , Circuit Judge. Plaintiff-appellee and cross-appel-
lant John F. Cloutier was a pilot for defendant-appellant and
cross-appellee GoJet Airlines, LLC. Cloutier learned he had
type II diabetes on June 2, 2014, which meant he could not
resume flying for GoJet until the Federal Aviation Admin-
istration (“FAA”) confirmed he could safely return. During
this period—in which Cloutier took medication and under-
went medical testing necessary for FAA approval—GoJet

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2 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
granted Cloutier medical leave under the Family Medical
Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Once GoJet de-
termined that Cloutier would not be able to return to flying
within the maximum twelve weeks of leave to which he was
entitled, however, GoJet terminated him.
This dispute first arose when Cloutier filed a grievance as-
serting FMLA violations pursuant to the “Collective Bargain-
ing Agreement” between GoJet and his union. The parties bat-
tled in arbitration to no avail. Then turning to the courts,
Cloutier initiated this complex lawsuit, suing GoJet for viola-
tions of the FMLA and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq. The jury reached a verdict
in Cloutier’s favor, finding GoJet had interfered with his
FMLA rights and retaliated against him for exercising his
FMLA rights. The district court then granted him back pay,
liquidated damages, and front pay.
On appeal, as it did below, GoJet presents an array of is-
sues for our consideration. GoJet argues that this dispute
should never have been allowed in litigation because the par-
ties’ Collective Bargaining Agreement required them to arbi-
trate FMLA claims. Failing that, GoJet asserts that the district
court erred in denying its motion for judgment as a matter of
law on several different grounds. For his own part, Cloutier
cross-appealed to present an additional set of issues attacking
the district court’s findings and calculations connected to
Cloutier’s damages award. For the reasons below, we affirm
in part and reverse in part.

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 3
I. Background
A. Factual Background
In 2008, Cloutier began flying as a pilot for GoJet, a com-
mercial airline operating flights on behalf of United Airlines
and Southwest Airlines. On June 2, 2014, Cloutier’s doctor,
Dr. Camelia Pop, notified him that he had type II diabetes and
accordingly prescribed him the medication Metformin. Clout-
ier’s diagnosis would entitle him to FMLA medical leave up
to a maximum of twelve weeks. See 29 U.S.C. § 2612(a)(1)(D)
(“[A]n eligible employee shall be entitled to a total of 12 work-
weeks of leave during any 12-month period … [b]ecause of a
serious health condition that makes the employee unable to
perform the functions of the position of such employee.”).
Cloutier testified that he “believe[d]” he could not fly on
June 2, 2014. This matters for our purposes because GoJet’s
Family and Medical Leave Act Policy (“FMLA Policy”) re-
quired that an employee with knowledge of the need to take
leave must notify GoJet “as soon as practicable,” defined as
“the same or next business day.” Despite Cloutier’s belief, Dr.
Pop told him that whether he could fly would be handled by
his FAA-designated physician. More generally, Cloutier said
he did not fully understand what a diabetes diagnosis meant
or entailed on June 2 and that he had a meeting scheduled
with a diabetes specialist on June 10, 2014, to learn more.
Moreover, as of June 2, 2014, GoJet had not scheduled him on
any flights, allowing Cloutier to continue to fulfill his obliga-
tions to GoJet by attending a mandatory yearly simulator
training in St. Louis, Missouri, from June 4 until June 9, 2014.
On June 10, 2014, once he returned to his home base in
Chicago, Cloutier called Dr. Kitslaar, his FAA medical

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4 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
examiner, who explained to him the FAA protocol for pilots
prescribed Metformin. Dr. Kitslaar told Cloutier he would
need to take the medication for sixty days, after which an Avi-
ation Medical Examiner would need to run tests on him. In
the meantime, he was prohibited from flying until the FAA
evaluated his test results and approved his return with a first-
class medical certificate. The parties dispute whether Cloutier
knew on June 2, 2014 (when he was diagnosed), or on June 10,
2014 (when he spoke with Dr. Kitslaar), that he would need
medical leave.
Around this time, GoJet added a flight to Cloutier’s sched-
ule for June 11, 2014. So, on June 10, 2014, Cloutier attempted
to call crew scheduling to notify them he was sick pursuant to
GoJet procedures because of his diabetes diagnosis. He also
notified the scheduling office that he would need medical
leave. As he later testified, he could not contact the Chief Pilot
as he normally would because at that time the Chief Pilot had
quit, leaving the position unfilled. Following up on his efforts
to notify GoJet of his need for leave, he sent an email on June
12, 2014, to the base manager, Tracey Ryan, informing her of
his need for leave. In that email he told her that FAA protocol
prohibited him from flying until he had taken his medicine
for sixty days, undergone certain tests for FAA review, and
received clearance from the FAA to fly.
In response, Ryan informed Cloutier that the required
FMLA forms could be found on GoJet’s website and that he
only had five days to return the forms to her. She told him to
have his doctor “fax [the paperwork] over to me by Tuesday
of next week,” or five days later. There is no evidence that
Ryan then told Cloutier of the “anticipated consequences” if
he failed to provide this paperwork. See 29 C.F.R. § 825.305(d)

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 5
(requiring that when an “employer requests certification, the
employer must also advise an employee of the anticipated
consequences of an employee’s failure to provide adequate
certification”). While GoJet had the above-referenced FMLA
Policy on its website, Cloutier testified that he “was never di-
rected to this [policy] and had no knowledge that it even ex-
isted.” On the subject of “Notice and Scheduling of Leave,”
the FMLA Policy instructed that “[w]hen planning medical
treatment, employees should consult with the Human Re-
sources Department.” At that time, however, GoJet did not
have a human resources department. This language appeared
in the same section of the FMLA Policy requiring employees
to give notice of their need for leave “as soon as practicable
(meaning the same or next business day).”
On June 17, 2014, Cloutier submitted his formal request for
sixty days’ leave commencing the next day. Dr. Pop submit-
ted a medical certification on his behalf to support this re-
quest, although it only indicated her estimation that Cloutier
would be incapacitated until July 31, 2014. Accordingly, there
was a mismatch between the sixty days of FMLA leave re-
quested and the July 31 date used in Dr. Pop’s certification.
Also on June 17, Ryan responded to Cloutier via email indi-
cating she would update his schedule to reflect FMLA leave
from June 11 to July 31, 2014. Cloutier responded to this email
that same day. With a start date of June 11, 2014, his leave
would expire, at its statutory maximum, twelve weeks later
on September 2, 2014, requiring that he be able to return by
September 3, 2014. If Cloutier could not return until after Sep-
tember 3, 2014, GoJet would be free to terminate him.
Understanding he would need leave past July 31, 2014,
Cloutier contacted GoJet’s Vice President of Operations, Steve

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6 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
Briner, on June 25 and 26, 2014, to notify him that he would
not be able to return on August 1, 2014, and needed leave until
at least late August—by which time he expected the FAA to
review his tests and approve his return. Instead of responding
to Cloutier, Briner emailed Ryan and the new Chief Pilot,
Randy Bratcher, on June 26, 2014:
I do not want you to reach out to this man again
either via phone or e-mail. Let Randy know the
instant you are back in the office if he calls or
sends an e-mail, so we can all discuss. After his
[FMLA leave] ends, our intent is to terminate his
employment for noncompliance with the law.
Steve.
Ryan acknowledged with a reply: “Will do – thank you.”
GoJet did not communicate with Cloutier until July 31,
2014, leaving a voicemail to notify him that he had been
scheduled to resume flying. Up to that point, Cloutier alleges
that GoJet failed to make several required notices pursuant to
FMLA regulations.1 Cloutier testified that if GoJet had made
its required notices under these regulations, he would have
expedited his submission of paperwork to the FAA and en-
sured an earlier return. Even still, prior to July 31, 2014, Clout-
ier tried at least four times to communicate to GoJet that he
1 Cloutier alleges that GoJet failed to give Cloutier: (1) an “Eligibility
notice” by not telling him of the limitations on unpaid leave and when
those limitations would arise under 29 C.F.R. § 825.300(b); (2) a “Rights
and responsibilities notice” by not providing him with “the specific expec-
tations and obligations of the employee and explaining any consequences
of a failure to meet these obligations” under 29 C.F.R. § 825.300(c); and
(3) a “Designation notice” by not informing him how much leave would
be counted against his entitlement under 29 C.F.R. § 825.300(d).

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 7
would not be able to return until late August due to his pend-
ing FAA approval. GoJet neither adjusted his leave past July
31 nor notified him that it was formally denying the requested
leave in response to these communications.
Checking for a response from GoJet to his many commu-
nications, Cloutier opened his email inbox on August 1, 2014,
around 5:00 p.m. He found none. At 6:15 p.m., however, Ryan
emailed him stating that his requested extension of FMLA
leave required a recertification by his doctor no later than Au-
gust 15, 2014. Cloutier testified that he did not see this email
until August 19, 2014, which was the first time that he recalled
checking his email since August 1. Cloutier also argues Ryan’s
demand provided him less than the minimum fifteen days
employers must give employees to provide a certification. See
29 C.F.R. § 825.313. After reading the email on August 19,
2014, Cloutier responded to Ryan that he just saw the email
and would get her the documents shortly. He followed up on
August 21, 2014, to notify Ryan that he was waiting for his
doctor’s recertification paperwork and to update her that the
FAA was nearing the conclusion of the review of his tests. On
August 25, 2014, he submitted the requested paperwork.
By that point, Cloutier was too late because GoJet had al-
ready terminated him. Bratcher first sent out a “termination
notification” on August 16, 2014, but the next day changed it
to a “resignation notification.” GoJet considered Cloutier to
have resigned on August 15, 2014. Reflecting that, Bratcher
sent a letter to Cloutier on August 22, 2014, which he received
on August 27, 2014. That letter provided: “Your voluntary res-
ignation without notice from employment with GoJet Airlines
was processed on August 15th, 2014 for failure to return from
leave.” Cloutier attempted to contact Bratcher to clarify that

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8 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
he had not resigned, but his calls and emails went unan-
swered.
Once terminated, Cloutier and his union initiated the
grievance and arbitration process as described in the parties’
Collective Bargaining Agreement. Section 24 of that agree-
ment defines “grievance” as a “dispute between the parties
arising under the terms of this Agreement.” Grievances are
submitted to the “Director of Operations.” After the Director
of Operations renders a decision, the union may “appeal[] …
to the Board of Adjustment within thirty (30) days after re-
ceipt of the decision.” The next section, Section 25, discussed
the “System Board of Adjustment” and the arbitration pro-
cess. Additionally, Section 15-F of the Collective Bargaining
Agreement purported to incorporate the FMLA: “Family and
Medical Leave (FMLA). The Company shall grant family and
medical leaves in accordance with applicable law.”
In accordance with these provisions, Cloutier’s union han-
dled his grievance, which claimed an “unjust constructive dis-
charge” and alleged that GoJet had violated Section 15-F of
the Collective Bargaining Agreement. Cloutier testified that
“one of the things the union put in [the grievance]” was an
allegation that GoJet breached Section 15-F by violating the
FMLA. The union brought the grievance in arbitration, but
GoJet asserted the grievance had not been properly filed and
that it need not arbitrate. After a year, the arbitrator finally
ruled that the grievance had been validly filed. Nevertheless,
GoJet still refused to enter arbitration.
B. Procedural Background
Unsuccessful in arbitration—in large part due to GoJet’s
obstinance—Cloutier brought his dispute to court. The Equal

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 9
Employment Opportunity Commission had released Cloutier
in September 2015 and had given him a right to sue letter that
would expire ninety days later. Thus, to avoid forfeiture of his
claim altogether, Cloutier filed suit in the Circuit Court of
Cook County on November 30, 2015, alleging violations of the
FMLA and ADA. GoJet removed the case to federal district
court, asserting federal question jurisdiction. Over the next
several years, the district court dutifully managed this mo-
tions-rich, complex litigation, overseeing a jury trial as to
Cloutier’s FMLA claims and conducting a bench trial as to
damages.
GoJet lodged several challenges throughout the litigation,
many of which form the basis of its appeal. First, GoJet moved
to dismiss the FMLA claims, arguing that the Collective Bar-
gaining Agreement required the parties to arbitrate those
claims. The district court denied this motion because, in its
view, the Collective Bargaining Agreement “falls far short of
the need to clearly and unmistakably require union members
to arbitrate claims arising under federal anti-discrimination
laws.” Second, GoJet moved for summary judgment as to cer-
tain FMLA interference, FMLA retaliation, and ADA claims.
The district court denied this motion in part, permitting many
of the claims to proceed to trial. Third, after the trial, GoJet
made an oral motion for judgment as a matter of law under
Federal Rule of Civil Procedure 50(a), arguing again that the
case should have been compelled to arbitration and that GoJet
was entitled to judgment as a matter of law on Cloutier’s
claims. The district court denied the motion, finding both ar-
guments unconvincing.
The jury found for Cloutier, concluding GoJet had inter-
fered with his FMLA rights and retaliated against him in

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10 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
violation of the FMLA. In a separate trial on damages, the dis-
trict court found that the jury had determined GoJet’s failure
to afford Cloutier fifteen days to get his initial medical certifi-
cation contributed to his termination, entitling Cloutier to
back pay and front pay on his interference claim (in addition
to his retaliation claim). The court ultimately awarded Clout-
ier back pay of $187,905.23, liquidated damages also of
$187,905.23, and front pay of $50,683, for a total of $426,493.46.
GoJet then filed a renewed motion for judgment as a mat-
ter of law under Federal Rule of Civil Procedure 50(b), for a
new trial under Federal Rule of Civil Procedure 59, and, in the
alternative, to amend the court’s damages findings under
Federal Rule of Civil Procedure 52. As with most of GoJet’s
motions throughout the litigation, the district court denied
this post-trial motion. GoJet timely appealed several of these
decisions.
In tandem with GoJet’s many challenges on appeal, Clout-
ier cross-appealed the district court’s findings and conclu-
sions as to damages. Cloutier filed a motion under Rule 59 to
correct an alleged mathematical error in the court’s judgment.
The court denied this motion. We return later to Cloutier’s
cross-appeal claims and the details of the trial on damages be-
fore the district court.
II. Discussion
A. Arbitration
The first issue we must consider is whether the district
court erred when it refused to compel arbitration and denied
GoJet’s motion to dismiss because, as GoJet argues, the Col-
lective Bargaining Agreement required Cloutier to arbitrate
his FMLA claims. We review the district court’s refusal to

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 11
compel arbitration de novo.2 Reviewing this decision calls on
us to review the interpretation of the Collective Bargaining
Agreement, which is a legal issue that we also review de novo.
See Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017) (“We review
the court’s legal conclusions de novo”); see Dugan v. R.J. Cor-
man R.R. Co., 344 F.3d 662, 665 (7th Cir. 2003) (“[I]nterpreta-
tion of a contract is treated as an issue of law when extrinsic
evidence is not used in the interpretation.”).
Parties, including unions, are free to negotiate to include
an arbitration provision in a contract. See 14 Penn Plaza LLC v.
Pyett, 556 U.S. 247, 257 (2009) (“As in any contractual negoti-
ation, a union may agree to the inclusion of an arbitration pro-
vision in a collective-bargaining agreement in return for other
concessions from the employer. Courts generally may not in-
terfere in this bargained-for exchange.”). Additionally, a un-
ion is free to negotiate an arbitration provision on behalf of its
members because “[n]othing in the law suggests a distinction
between the status of arbitration agreements signed by an in-
dividual employee and those agreed to by a union representa-
tive.” See id. at 258.
2 GoJet filed a motion to dismiss for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1), not a motion to compel
arbitration under some other provision, like 9 U.S.C. § 4 of the Federal Ar-
bitration Act. That motion, however, functionally asked the court to com-
pel arbitration. Regardless of whether we treat this issue as review of a
motion to dismiss or a motion to compel, de novo review applies. Compare
Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 381 (7th Cir. 2001)
(“We review de novo the district court’s legal determination of whether
subject matter jurisdiction exists.”), with Druco Rests., Inc. v. Steak N Shake
Enters., Inc., 765 F.3d 776, 779 (7th Cir. 2014) (“We review de novo a district
court’s grant or denial of a motion to compel arbitration.”).

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12 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
Generally, “arbitration decisions do not have preclusive
effect in later litigation” based on antidiscrimination statutes.
See Coleman v. Donahoe, 667 F.3d 835, 854 (7th Cir. 2012). The
Supreme Court has crafted an exception to this rule, however,
“where a clause in a collective bargaining agreement has ex-
plicitly mandated that ‘employment-related discrimination
claims […] would be resolved in arbitration.’” Id. (quoting 14
Penn Plaza, 556 U.S. at 256). The exception requires “only that
an agreement to arbitrate statutory antidiscrimination claims
be ‘explicitly stated’ in the collective-bargaining agreement.”
14 Penn Plaza, 556 U.S. at 258. The Supreme Court alterna-
tively described this “explicitly stated” requirement as de-
manding a “clear and unmistakable” waiver. Wright v. Uni-
versal Mar. Serv. Corp., 525 U.S. 70, 80 (1998).
In this case, GoJet aims to apply this exception to the Col-
lective Bargaining Agreement in order to require Cloutier to
arbitrate his FMLA claims. To that end, GoJet argues that,
read together, Sections 24 and 25 (the arbitration provisions)
and Section 15 (the provision purporting to incorporate the
FMLA) of the Collective Bargaining Agreement explicitly or
clearly and unmistakably stated that FMLA claims had to be
resolved in mandatory arbitration.
The Supreme Court’s decisions in 14 Penn Plaza and
Wright delineate the spectrum of what constitutes “clear and
unmistakable” language in collective bargaining agreements
requiring arbitration of certain federal antidiscrimination
statutory claims. At one end, in Wright, the Court found con-
tractual language insufficiently “clear and unmistakable.” 525
U.S. at 82. The arbitration clause considered there was “very
general, providing for arbitration of ‘[m]atters under dis-
pute’—which could be understood to mean matters in

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 13
dispute under the contract,” rather than under a statute. Id. at
80 (alterations in original) (citation omitted). Separate from
this general provision, “the remainder of the contract con-
tain[ed] no explicit incorporation of statutory antidiscrimina-
tion requirements.” Id.
The employer pointed to the language from a different
clause of the collective bargaining agreement to show that an-
tidiscrimination claims were subsumed into the arbitration
provision. That clause said, “no provision or part of this
Agreement shall be violative of any Federal or State Law.” Id.
at 81. The Supreme Court held this was “nothing more than a
recitation of the canon of construction which would in any
event have been applied to the [collective bargaining agree-
ment]—that an agreement should be interpreted in such fash-
ion as to preserve, rather than destroy, its validity.” Id. In
other words, that language was “not the same as making com-
pliance with the ADA a contractual commitment that would
be subject to the arbitration clause.” Id.
At the other end of the spectrum, in 14 Penn Plaza, the Su-
preme Court found language in a collective bargaining agree-
ment had “explicitly stated” that certain federal statutory
claims were bound by mandatory arbitration. 556 U.S. at 258–
59. Compared to Wright, the antidiscrimination provision had
appreciably more teeth:
There shall be no discrimination against any
present or future employee by reason of race,
creed, color, age, disability, national origin, sex,
union membership, or any characteristic pro-
tected by law, including, but not limited to,
claims made pursuant to Title VII of the Civil
Rights Act, the Americans with Disabilities Act,

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14 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
the Age Discrimination in Employment Act, the
New York State Human Rights Law, the New
York City Human Rights Code, ... or any other
similar laws, rules or regulations. All such
claims shall be subject to the grievance and ar-
bitration procedure (Articles V and VI) as the
sole and exclusive remedy for violations. Arbi-
trators shall apply appropriate law in rendering
decisions based upon claims of discrimination.
Id. at 252 (alteration in original). The Supreme Court held that
this language “[met] [the] obligation” that “an agreement to
arbitrate statutory antidiscrimination claims be ‘explicitly
stated’ in the collective-bargaining agreement.” Id. at 258–59.
The Court explained that the parties fashioned the agreement
to explicitly provide that “employment-related discrimina-
tion claims … would be resolved in arbitration.” See id. at 256.
Thus, the agreement “clearly and unmistakably require[d] re-
spondents to arbitrate the age-discrimination claims at issue.”
Id. at 260.
We built on this framework in Vega v. New Forest Home
Cemetery, LLC, 856 F.3d 1130 (7th Cir. 2017). We held that a
collective bargaining agreement “set[ting] forth a mandatory
four-step procedure culminating in arbitration to resolve em-
ployee grievances” did not “clearly and unmistakably waive
[the] right to pursue [a] [Fair Labor Standards Act (FLSA)]
claim in a judicial forum.” Id. at 1131 (footnote omitted). The
agreement defined “‘grievance’ to include ‘a claim or dispute
concerning pay, hours[,] or working conditions or the inter-
pretation or application of this Agreement.’” Id. at 1131–32
(alteration in original). Much like Cloutier, the plaintiff in
Vega first attempted to follow the grievance procedure, but

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 15
such efforts proved “futile,” so he filed a lawsuit in court. Id.
at 1132.
We rejected the argument that “because the agreement de-
fine[d] a grievance to include disputes over pay, it necessarily
require[d] statutory claims on the same subject to be submit-
ted to the grievance process.” Id. at 1134. We explained:
Our decision in Jonites v. Exelon Corp., 522 F.3d
721, 725 (7th Cir. 2008), shows why that as-
sumption is mistaken. Jonites held that language
in a collective bargaining agreement to the effect
that “any dispute or difference aris[ing] be-
tween the Company and the Union or its mem-
bers as to the interpretation or application of
any of the provision[s] of this Agreement or
with respect to job working conditions” must be
resolved through the contractual grievance pro-
cedure was not an “explicit” waiver of an em-
ployee’s right to sue under the FLSA. Id. We
noted that this generalized language was little
different from that at issue in Wright, supra,
wherein the Supreme Court had likewise con-
cluded that there was no clear and unmistaka-
ble language in the agreement requiring claims
under the Americans with Disabilities Act to be
arbitrated. 522 F.3d at 725; see Wright, 525 U.S. at
80–82.
Id. at 1134–35 (some alterations in original) (some citations
omitted).
In Vega, we determined the collective bargaining agree-
ment language fell more on the side of Wright than 14 Penn

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16 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
Plaza. Specifically, we concluded it did not prohibit the plain-
tiff from litigating his FLSA claims because that was “the most
natural reading of the agreement,” which nowhere referenced
the FLSA. Id. at 1135.
Turning to the Collective Bargaining Agreement in this
case, GoJet asks us to read Section 15 in tandem with the arbi-
tration provisions in Sections 24 and 25 to call for mandatory
arbitration of Cloutier’s FMLA claims. Section 24 provided
that “[a] grievance is a dispute between the parties arising un-
der the terms of this Agreement.” Section 15 earlier provided:
“Family and Medical Leave (FMLA)[:] The Company shall
grant family and medical leaves in accordance with applica-
ble law.” GoJet argues that read together, these sections re-
quired any FMLA claims to be arbitrated. We disagree and
hold that the Collective Bargaining Agreement was insuffi-
ciently “clear and unmistakable” to require Cloutier to bring
his FMLA claims in arbitration. See Wright, 525 U.S. at 80.
The Collective Bargaining Agreement more closely resem-
bles the contractual language in Wright and Vega than the lan-
guage in 14 Penn Plaza. Much like the language in Wright,
which was “very general, providing for arbitration of ‘[m]at-
ters under dispute,’” id. at 80 (alteration in original), the Col-
lective Bargaining Agreement only provided for arbitration of
“dispute[s] between the parties arising under the terms of this
Agreement.” Reading Section 24 to have not precluded litiga-
tion of FMLA claims is “the most natural reading of the agree-
ment,” given the absence of any reference to the FMLA in Sec-
tion 24. Vega, 856 F.3d at 1135.
Even if we accept GoJet’s invitation to read Sections 24
and 25 alongside Section 15, that latter provision only added
that GoJet will act “in accordance with applicable law.” There

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 17
is little distinction between that language and the language on
which the employer in Wright tried to rely, providing that “no
provision or part of this Agreement shall be violative of any
Federal or State Law.” 525 U.S. at 81. Section 15 merely clari-
fied that GoJet had to comply with the law (or the FMLA) gen-
erally, which is “not the same as making compliance with the
[FMLA] a contractual commitment that would be subject to
the arbitration clause” in Section 24. See id. Also, Section 15’s
reference to the Act was far from “clear and unmistakable” as
to whether it intended to subject FMLA claims to the griev-
ance procedures under Sections 24 and 25. See id. at 80. The
parties could have easily written Section 15 to say something
akin to “Any FMLA claims must be brought pursuant to the
grievance procedure as described in Sections 24 and 25.” They
did not, and we will not now read Section 15 to say so.
It is neither unattainable nor unreasonable to expect par-
ties to a collective bargaining agreement to clearly state those
statutory claims that they intend to confine to arbitration. For
example, the contractual language in 14 Penn Plaza left no
doubt that the collective bargaining agreement required arbi-
tration of certain statutory claims. Not only did the language
in 14 Penn Plaza reference “claims made pursuant” to specific
anti-discrimination laws, it also specifically subjected those
claims “to the grievance and arbitration procedure … as the
sole and exclusive remedy for violations.” See 556 U.S. at 252.
Without question, that collective bargaining agreement “ex-
plicitly stated” those claims had to be brought in arbitration.
See id. at 258–59. The Collective Bargaining Agreement here,
by contrast, made no mention of “claims made pursuant” to
the FMLA nor suggested these (unmentioned) claims would
be bound by arbitration provisions found nine sections later
in Section 24. See id. The Collective Bargaining Agreement

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18 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
thus did not “explicitly state[]” that FMLA claims were lim-
ited to arbitration. See id.
To support reading Sections 24 and 25 together with Sec-
tion 15 to require that FMLA claims be subject to binding ar-
bitration, GoJet leans on decisions from the Fourth and Fifth
Circuits. Instead of controlling our analysis, these cases
merely represent different applications of the Wright/14 Penn
Plaza framework.
The Fifth Circuit in Gilbert v. Donahoe, 751 F.3d 303 (5th Cir.
2014), confronted a collective bargaining agreement with an
arbitration provision that extended to disputes involving the
“interpretation, application of, or compliance with the provi-
sions of this Agreement.” Id. at 309. In a different section, the
agreement provided that “there shall be no unlawful discrim-
ination against handicapped employees, as prohibited by the
Rehabilitation Act.” Id. at 309–10. The Fifth Circuit concluded
that when combined, the arbitration clause and “this provi-
sion ma[de] it clear and unmistakable that the Rehabilitation
Act is part of the [collective bargaining agreement] and sub-
ject to the same grievance procedures.” Id. at 310. In other
words, it “specifically provide[d] that it is incorporating into
the agreement the prohibition of discrimination against hand-
icapped employees contained in the Rehabilitation Act.” Id.
GoJet fails to acknowledge that Gilbert addressed another
clause of the agreement requiring “policies to comply with
the [FMLA].” Id. (alteration in original). Unlike the provision
regarding the Rehabilitation Act, which had adequately in-
corporated that Act into the agreement, the generic mention
of the FMLA did not suffice “to make the FMLA a part of the
agreement.” Id. The court went on to say that “[a]s our sister
circuits have recognized, references to statutes that fall short

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 19
of incorporation are insufficiently ‘clear and unmistakable’ to
bar access to federal court.” Id. (footnote omitted) (citing
cases). Thus, with respect to the FMLA, the court held the
agreement “did not clearly and unmistakably require [the
plaintiff] to resolve claims arising under the Family and Med-
ical Leave Act through arbitration.” Id. at 305.
GoJet’s reliance on Gilbert is misplaced. The Gilbert agree-
ment contained clear language binding disputes over “com-
pliance with [its] provisions” to arbitration and also expressly
proscribed “unlawful discrimination” under the Rehabilita-
tion Act. Id. at 309–10. By contrast, the Collective Bargaining
Agreement contained only the nondescript catch-all that dis-
putes “arising under the terms of this Agreement” would be
bound to arbitration and only generally required GoJet to
grant leave “in accordance with applicable law” but did not
“specifically provide[] that it [was] incorporating into the
agreement the prohibition of” FMLA violations. See id. at 310.
These distinctions in specificity, while minor, lead us to con-
clude that the Collective Bargaining Agreement was “insuffi-
ciently ‘clear and unmistakable’ to bar access to federal
court.” See id.
Perhaps most on point, however, is the provision that Go-
Jet disregards from Gilbert. That provision required “policies
to comply with the [FMLA].” Id. (alteration in original). That
language is, essentially, the same as the clause in Section 15
requiring GoJet permit leave “in accordance with applicable
law” and a reference to the FMLA. Accordingly, even adopt-
ing the reasoning of Gilbert, Section 15 “did not clearly and
unmistakably require [Cloutier] to resolve claims arising un-
der the Family and Medical Leave Act through arbitration.”
See id. at 305.

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20 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
GoJet next points to caselaw from the Fourth Circuit,
which has confirmed that courts may find a “‘clear and un-
mistakable’ waiver” of an employee’s right to a judicial forum
even “where the arbitration clause is ‘not so clear[]’ … if ‘an-
other provision, like a nondiscrimination clause, makes it un-
mistakably clear that the discrimination statutes at issue are
part of the agreement.’” Brown v. ABF Freight Sys., Inc.,
183 F.3d 319, 321 (4th Cir. 1999) (quoting Carson v. Giant Food,
Inc., 175 F.3d 325, 332 (4th Cir. 1999)). The Fourth Circuit later
applied this approach in Safrit v. Cone Mills Corp., 248 F.3d 306
(4th Cir. 2001), in which the “parties agreed that they would
‘abide by all the requirements of Title VII’ and that ‘[u]nre-
solved grievances arising under this Section are the proper
subjects for arbitration.’” Id. at 308. (alteration in original).
These provisions “indubitably provide[d] such a clear and
unmistakable waiver.” Id. “Indeed, it [was] hard” for the Saf-
rit court “to imagine a waiver that would be more definite or
absolute.” Id.
The contractual language present in Safrit only further il-
lustrates what is lacking in this case. Again, the north star of
our analysis is whether a waiver is “clear and unmistakable.”
We cannot say that the language in this case—“The Company
shall grant family and medical leaves in accordance with ap-
plicable law”—satisfies this test. We can easily “imagine a
waiver that would be more definite or absolute.” See id. Un-
like the language from Safrit, the Collective Bargaining Agree-
ment here did not include provisions in Section 15 saying the
parties would “abide by all the requirements of [the FMLA]”
and that “[u]nresolved grievances arising under this Section
are the proper subjects for arbitration.” See id. To be clear, we
do not see Safrit’s linguistic formulation as the only way to
meet the “clear and unmistakable” standard. However,

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 21
absent Safrit-style language or any other strong contractual
indications that the parties agreed to mandatory arbitration of
FMLA claims, we cannot now say the Collective Bargaining
Agreement “indubitably provide[d] such a clear and unmis-
takable waiver.” Id.
The above survey of the case law reveals a spectrum of
cases ranging from those with clear and unmistakable waiv-
ers, like 14 Penn Plaza, Gilbert, and Safrit, to those without, like
Wright and our own precedent Vega. This line of cases under-
scores just how high the “clear and unmistakable” bar is. Nev-
ertheless, parties can and do meet that bar. In 14 Penn Plaza,
Gilbert, and Safrit, by the language of the collective bargaining
agreements, the parties had undoubtedly waived their right
to pursue statutory claims outside of arbitration. The same
cannot be said here. For all these reasons, we hold the arbitra-
tion provisions in the Collective Bargaining Agreement did
not “clear[ly] and unmistakabl[y]” or “explicitly state[]” that
Cloutier’s FMLA claims could only be brought in arbitration.
See Wright, 525 U.S. at 80. Therefore, the district court appro-
priately denied GoJet’s motion to dismiss.
B. Judgment as a Matter of Law
The second issue we must consider is whether the district
court correctly denied GoJet’s oral Rule 50(a) motion for judg-
ment as a matter of law. “Rule 50(a) of the Federal Rules of
Civil Procedure allows a district court to enter judgment
against a party who has been fully heard on an issue during a
jury trial if ‘a reasonable jury would not have a legally suffi-
cient evidentiary basis to find for the party on that issue.’”
Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372, 376 (7th
Cir. 2011) (quoting Fed. R. Civ. P. 50(a)). “We review denials
of a motion for judgment as a matter of law de novo.” Fabick,

-- 21 of 46 --

22 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
Inc. v. JFTCO, Inc., 944 F.3d 649, 656 (7th Cir. 2019). “In apply-
ing this de novo standard of review, we evaluate whether any
reasonable jury could have reached the same conclusion.” Id.
(quoting Liu v. Price Waterhouse LLP, 302 F.3d 749, 754 (7th Cir.
2002)). This is a “stringent standard,” so we “construe the
facts strictly in favor of the party that prevailed at trial.”
Schandelmeier-Bartels, 634 F.3d at 376; see also Fabick, 944 F.3d
at 656 (requiring that we “view[] evidence in the light most
favorable to the non-moving party”).
Relatedly, GoJet challenges whether the district court also
correctly denied GoJet’s Rule 50(b) renewed motion for judg-
ment as a matter of law. As a “Rule 50(b) motion is only a
renewal of the preverdict motion, it can be granted only on
grounds advanced in the preverdict motion.” Thompson v.
Mem’l Hosp. of Carbondale, 625 F.3d 394, 407 (7th Cir. 2010). We
also “review de novo the denial of a Rule 50(b) motion.” Em-
press Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d
815, 822 (7th Cir. 2016).
GoJet points to three reasons it was entitled to judgment
as a matter of law: “(1) the evidence shows [Cloutier] could
not have returned to work after twelve weeks of leave;
(2) there is no evidence to support the FMLA interference ver-
dict theory on which damages were awarded; and (3) [Clout-
ier] failed to provide timely notice to GoJet regarding his need
for leave.” We address each argument in turn.3
3 GoJet’s oral Rule 50(a) motion also reraised the issue of whether the
FMLA claims should have been subject to mandatory arbitration under
the Collective Bargaining Agreement, but we will not revisit that issue be-
cause our arbitration analysis still holds true at the judgment-as-a-matter-
of-law stage.

-- 22 of 46 --

Nos. 19-1322, 19-1773, 19-1823 & 19-3279 23
1. Inability to Return to Work
GoJet first argues that the district court erred in finding
that a reasonable jury could have found that Cloutier could
have returned to work within twelve weeks of taking leave.
Subject to certain requirements, the FMLA grants quali-
fied employees a right to have their job restored after a maxi-
mum of twelve weeks of unpaid leave. See 29 U.S.C. §§ 2612–
2614. To effectively establish entitlement to FMLA relief, an
employee must “prove that he was prejudiced by the viola-
tion” of the FMLA. Franzen v. Ellis Corp., 543 F.3d 420, 426 (7th
Cir. 2008). “An employee also has no right to reinstatement—
and, therefore, damages—if, at the end of his twelve-week pe-
riod of leave, he is either unable or unwilling to perform the
essential functions of his job.” Id. As such, “if [Cloutier] was
either unwilling or unable to return to work at the expiration
of his FMLA leave, [GoJet] lawfully could have terminated his
employment, and he would not be entitled to damages result-
ing from this termination.” Id.; see also Breneisen v. Motorola,
Inc., 656 F.3d 701, 705 (7th Cir. 2011) (“When serious medical
issues render an employee unable to work for longer than the
twelve-week period contemplated under the statute, the
FMLA no longer applies.”).
Cloutier’s FMLA leave officially began on June 11, 2014,
meaning that, to retain a right to reinstatement, he had to be
able and willing to perform the essential functions of his job
twelve weeks later on September 3, 2014.4 See Franzen, 543
F.3d at 426. Cloutier underwent medical tests in early August,
4 His statutory-maximum allotment of twelve weeks of FMLA leave
would have expired on September 2, 2014, requiring Cloutier to return the
next day.

-- 23 of 46 --

24 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
which he estimated would take “about two weeks.” The re-
sults of those tests were submitted to the FAA around August
14, 2014, leading to his eventual, but untimely, approval on
September 4, 2014. GoJet argues that Cloutier was precluded
from returning to work within that twelve-week window be-
cause the FAA only cleared Cloutier’s return and gave him
his medical certificate one day later than the statutory dead-
line. Consequently, GoJet contends that Cloutier was not en-
titled to his job and GoJet was entitled to judgment as a matter
of law.
Cloutier responds that “had he been given the [regulatory]
notices that Go[J]et was required to give to him [as outlined
in 29 C.F.R. § 825.300(b)–(d)], he could have had all of his pa-
perwork submitted to the FAA on August 1, 2014, instead of
August 14, 2014[,] and would probably have had FAA ap-
proval and returned within the 12 week FMLA protected pe-
riod.” In other words, Cloutier asserts that if GoJet had
properly communicated with him about the various dead-
lines, he would have been approved to work by September 3,
2014. Beyond the ungiven notice requirements, GoJet also cut
off communications with Cloutier when Briner told Ryan,
Cloutier’s point of contact: “I do not want you to reach out to
this man again either via phone or e-mail.” Cloutier testified
that had he known of that deadline, he would have scheduled
his tests as much as two weeks earlier:
If I had known that I only had the 12 weeks and
that there was a time limit, I would have
pressed the doctor to have the test done quicker,
and I would have had the paperwork into the
FAA earlier so it would have all been completed
maybe a week or two earlier. But I didn’t know

-- 24 of 46 --

Nos. 19-1322, 19-1773, 19-1823 & 19-3279 25
there was a limit so there was a rush. Not know-
ing that, I did not push the doctor in the time
schedule to get the test done. And so as of the
day it was approved, the 4th, I think that was
one day past the 12 weeks. So given the fact that
it was not pushed or anything, I would have
needed one additional day.
Cloutier argues that had GoJet complied with various reg-
ulatory notice requirements and not adopted a no-contact
policy with him, Cloutier would have better understood his
obligations, more expeditiously requested leave in the first
place, and more aggressively pursued FAA approval, all of
which could have led to him returning to work by September
3, 2014.
Whether Cloutier would have received FFA approval
sooner was a genuine question of fact for the jury. In fact, if
any of the above considerations expedited his approval by
only a day or two, he would have retained his entitlement to
his job. Determining what inferences from factual evidence
are appropriate is a task quintessentially entrusted to the jury.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Cred-
ibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury func-
tions, not those of a judge, whether he is ruling on a motion
for summary judgment or for a directed verdict. The evidence
of the non-movant is to be believed, and all justifiable infer-
ences are to be drawn in his favor.”); see also Fed. R. Civ.
P. 50(a)(1) (allowing a court to award judgment as a matter of
law if “the court finds that a reasonable jury would not have
a legally sufficient evidentiary basis to find for the party on
that issue”). Construing the record “strictly in favor of the

-- 25 of 46 --

26 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
party that prevailed at trial,” Schandelmeier-Bartels, 634 F.3d at
376, in this case Cloutier, a reasonable jury could have found
that Cloutier could have returned by September 3, 2014, but
for GoJet’s conduct.
GoJet’s view that the above inferences call for speculation
are unpersuasive. GoJet stresses that Cloutier’s ability to re-
turn to flying rested on “a time-consuming, multi-step pro-
cess” and “three different sets of actors.” In GoJet’s view,
Cloutier’s arguments that he would have acted differently de-
pended on showing that “(1) ‘if [he] had known [he] only had
the 12 weeks,’ then (2) three different sets of actors—[Clout-
ier], multiple doctors, and the FAA—would each have acted
as he supposes, (3) culminating in an earlier release by the
FAA.” (Some alterations in original).
First, GoJet argues that it had provided Cloutier with the
information about FMLA leave through an email from Ryan
directing him to GoJet’s website. While Ryan did send that
email, there is no evidence in the record that GoJet specifically
directed him to the FMLA Policy, and Cloutier testified that
he “was never directed to this and had no knowledge that it
even existed.” In any event, the mere existence of a policy on
the Internet, in a vacuum, does not absolve GoJet. GoJet had
adopted a no-contact policy with Cloutier, ignoring Cloutier’s
repeated and consistent efforts to communicate about his
need for leave. More to the point, a reasonable jury could have
found (as the jury here did) that GoJet’s failure to cure infor-
mational and notice deficiencies were likely to have made a
difference.
Second, GoJet argues Cloutier had no control over his doc-
tors; therefore, his assertion that he could have pressed his
doctors to complete his tests and paperwork faster amounts

-- 26 of 46 --

Nos. 19-1322, 19-1773, 19-1823 & 19-3279 27
to speculation. To support its position, however, GoJet only
argues about the inferences that the jury could draw from the
evidence in this case, including Cloutier’s own testimony. As
noted, Cloutier testified that he could have received his ap-
proval in time if he had pushed his doctors. Absent concrete
evidence to the contrary, a reasonable jury could have de-
cided to credit that testimony and concluded that urging
Cloutier’s doctors to move faster would have moved the nee-
dle.
Third, GoJet argues that Cloutier also merely speculated
about the FAA approving him sooner than September 4, 2014
(even if he had submitted the completed tests to the FAA
sooner). GoJet again points to Cloutier’s testimony that his ap-
proval “was all up to the FAA,” and that he had been “calling
them pretty much every day,” such that there was nothing
more he could have done. Outside of self-serving claims of
speculation, however, GoJet does not point to any evidence of
its own undermining Cloutier’s testimony. A reasonable jury
could have therefore plausibly credited the argument that if
Cloutier got his tests in order more quickly, then the FAA
could have issued an approval at least one or two days
sooner.
Our conclusions illustrate that we view what GoJet calls
“speculation” as part and parcel of the jury’s core function to
determine what inferences to draw from the available evi-
dence. See Anderson v. Liberty Lobby, 477 U.S. at 255. Of course,
to answer the question of whether Cloutier could have re-
turned before twelve weeks, the jury was called to consider
the available evidence and counterfactuals. Yet, we must
draw “all justifiable inferences” in favor of the non-movant,
Cloutier. Id. Under the circumstances, the fact that Cloutier

-- 27 of 46 --

28 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
did not return within twelve weeks does not mean he could
not have done so. A “reasonable jury could have reached the
same conclusion” on the facts and evidence here, Fabick, 944
F.3d at 656 (citation omitted), and found that Cloutier could
have returned to work by September 3, 2014. The district court
therefore correctly rejected GoJet’s arguments.
2. Evidence Supporting Cloutier’s FMLA Interference
Claim
GoJet next argues the district court erred in denying its
motion for judgment as a matter of law because a reasonable
jury could not reach a verdict that GoJet had interfered with
Cloutier’s FMLA rights. GoJet asserts that “there is no evi-
dence to support Plaintiff’s argument that GoJet caused his
termination by giving him only five days to complete his ini-
tial FMLA certification paperwork[.]”
“[T]he FMLA provides that an employer may not ‘inter-
fere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided [by the Act].’” Brown v. Auto.
Components Holdings, LLC, 622 F.3d 685, 689 (7th Cir. 2010)
(quoting 29 U.S.C. § 2615(a)(1)). “To prevail on an FMLA-
interference claim, an employee must demonstrate that:
(1) she was eligible for FMLA protection; (2) her employer
was covered by the FMLA; (3) she was entitled to FMLA
leave; (4) she provided sufficient notice of her intent to take
leave; and (5) her employer denied her benefits to which she
was entitled.” Id. The jury reached a verdict that GoJet had
interfered with Cloutier’s FMLA rights in bad faith. The dis-
trict court posited that, “consistent with how Cloutier’s coun-
sel argued the case to the jury, the likely best reading of the
verdict on the interference claim is that the jury found that

-- 28 of 46 --

Nos. 19-1322, 19-1773, 19-1823 & 19-3279 29
GoJet did not give Cloutier enough time to obtain his medical
certification and that this ultimately led to his termination.”
GoJet (through Ryan) initially demanded Cloutier provide
his doctor’s certification for his FMLA leave within five days,
even though he was entitled to fifteen days. See 29 C.F.R.
§ 825.313(b). This condensed timeline may have, as Cloutier
argues, caused Cloutier to not realize that GoJet had only
given him leave until July 31, 2014, not the sixty days he re-
quested. Cloutier contended this “started a cascade of events
that led to Cloutier’s termination.”
Even apart from this failure to give Cloutier fifteen days
to obtain certification, Cloutier contends that the jury had “no
shortage of evidence” that “Go[J]et interfered with Plaintiff’s
taking FMLA leave and that the interference was in bad
faith.” As discussed above, Cloutier highlights the several
regulatory notices that GoJet failed to provide Cloutier. See 29
C.F.R. § 825.300(b)–(d). We agree that the failure to give these
notices plausibly interfered with Cloutier’s FMLA rights.
Moreover, Briner directed GoJet employees to adopt a no-con-
tact policy, which runs counter to 29 C.F.R. § 825.300(c)(5)’s
expectation that employers “responsively answer questions
from employees concerning their rights and responsibilities
under the FMLA.” These facts could lead a reasonable jury to
find that GoJet had interfered with Cloutier’s FMLA rights.
Therefore, the district court appropriately denied GoJet’s mo-
tion for judgment as a matter of law on the issue.
GoJet again tries to cast these arguments as pure “specu-
lation,” but, as with the return-to-work issue, we must con-
strue the facts strictly in Cloutier’s favor. See Schandelmeier-
Bartels, 634 F.3d at 376. The issue of whether Cloutier, if given
fifteen days to secure his medical certification, would have

-- 29 of 46 --

30 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
then read the certification from Dr. Pop and caught the error
(that it sought leave only through July 31, 2014), was appro-
priately left to the jury. Even beyond the fifteen-day window
interference, GoJet also allegedly failed to give a multitude of
other required regulatory notices to Cloutier, and a jury could
reasonably conclude these failures also constituted interfer-
ence with his FMLA rights.
3. Failure of Cloutier to Provide Timely Notice
Taking a slightly different tack, GoJet argues that the dis-
trict court erred in denying its motion for judgment as a mat-
ter of law because Cloutier did not provide GoJet proper no-
tice that he needed medical leave. To maintain an FMLA in-
terference claim, an employee must have “provided sufficient
notice of [his] intent to take FMLA leave.” See Brown v. Auto.
Components, 622 F.3d at 689; see also Daugherty v. Wabash Ctr.,
Inc., 577 F.3d 747, 750 (7th Cir. 2009) (per curiam) (“To show
a violation of FMLA rights, plaintiffs must show that … they
provided the appropriate notice ….”). GoJet argues that
Cloutier was required to give notice to GoJet of his need for
leave on June 2, 2014. On that date, Cloutier learned he had
been diagnosed with diabetes and even testified that he “be-
lieve[d]” he could not fly. GoJet’s FMLA Policy, as posted on
its website, required notice “as soon as practicable (meaning
the same or next business day).” GoJet therefore argues that
on June 2, 2014, Cloutier needed, but failed, to provide the re-
quired prompt notice.
Under 29 C.F.R. § 825.304(a), it “must be clear that the em-
ployee had actual notice of the FMLA notice requirements.”
Even if we assume Cloutier knew he needed to take leave on
June 2, the record shows that GoJet never made Cloutier
aware of GoJet’s online pamphlet discussing its FMLA notice

-- 30 of 46 --

Nos. 19-1322, 19-1773, 19-1823 & 19-3279 31
requirements, and Cloutier testified that he “was never di-
rected to this and had no knowledge that it even existed.”
Moreover, that policy instructed employees requesting leave
to notify the “Human Resources Department” even though
GoJet had no human resources department. It would have
therefore been impossible to comply with GoJet’s notice pol-
icy even if Cloutier had known of it.
Assuming that Cloutier had failed to properly give notice
according to GoJet’s “usual and customary notice and proce-
dural requirements for requesting leave,” GoJet could then
have “delayed or denied” leave for Cloutier under 29 C.F.R.
§ 825.303(c). GoJet chose neither option and thus waived its
objections to Cloutier’s faulty notice. See id. § 825.302(g) (“An
employer may waive employees’ FMLA notice require-
ments.”); id. § 825.304(e) (“An employer may waive employ-
ees’ FMLA notice obligations or the employer’s own internal
rules on leave notice requirements.”). That does not mean
Cloutier was excused of his separate obligation to show he
provided “appropriate notice” to GoJet of his need for leave,
Daugherty, 577 F.3d at 750, but it does speak to whether GoJet
independently waived its own internal requirements for such
notice housed in the FMLA Policy on GoJet’s website.
Setting aside GoJet’s FMLA Policy, Cloutier still “pro-
vided sufficient notice of [his] intent to take [FMLA] leave.”
Brown v. Auto. Components, 622 F.3d at 689. He learned of his
diabetes diagnosis on June 2, 2014, but he testified that he did
not then understand what that diagnosis meant. The next day
he went to a mandatory dayslong job training in St. Louis un-
til returning to Chicago on June 10, 2014; in effect, he contin-
ued working from June 2 until June 10, 2014. He also had no
scheduled flights when he was diagnosed on June 2. Once he

-- 31 of 46 --

32 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
learned that GoJet had scheduled him to fly on June 11, 2014,
and once he had time to consult with Dr. Kitslaar and a dia-
betes specialist to better understand his diagnosis, he
promptly notified GoJet of his need to take leave on June 10,
2014. In our view this notice was “as soon as practicable under
the facts and circumstances of the particular case,” 29 C.F.R.
§ 825.303(a), especially considering that no evidence points to
intentional delay by Cloutier.
Any insufficient-notice argument advanced by GoJet is
also cut off by the fact that Cloutier cured any delay in provid-
ing notice on June 10, 2014. Notably, “untimely notice” and
“insufficient notice” are not interchangeable terms. Given that
the FMLA interference claims in this case arose after Cloutier
gave notice, the timing of said notice is irrelevant.
GoJet cites two cases to support its view that Cloutier
failed to provide proper notice. In Brown v. Automotive Com-
ponents, we confronted a plaintiff who already had been given
some FMLA leave yet never informed her employer that she
would need extended leave. 622 F.3d at 687–88. In the process,
the employee ignored several communications from her em-
ployer and was then terminated. Id. at 688. When she sued for
FMLA interference, we noted that “an employer does not vi-
olate the FMLA by terminating an employee who fails to fol-
low the notice provisions of a collective-bargaining agree-
ment.” Id. at 690. We held that the employee failed to comply
with notice requirements when she went absent without
leave, precluding any interference with her FMLA rights. See
id. at 690–91. In Gilliam v. United Parcel Service, Inc, 233 F.3d
969 (7th Cir. 2000), the employer waived its notice require-
ments to grant plaintiff a short amount of FMLA leave. See id.
at 970. The employee then failed to return for over a week

-- 32 of 46 --

Nos. 19-1322, 19-1773, 19-1823 & 19-3279 33
after his short leave period expired and ignored the employer
along the way. Id. We thus concluded that the employer did
not violate the FMLA. See id. at 971–72. Brown and Gilliam
therefore both concerned employees who had been given
some amount of leave by their employers but, when in need
of an extension, failed to communicate with their employers.
In contrast, Cloutier provided notice on June 10, 2014, be-
fore ever actually taking any leave on June 11, 2014 (his re-
quest was for leave on June 17, 2014, but GoJet documented
his leave as of June 11, 2014). Far from failing to communicate,
Cloutier then consistently attempted to connect with GoJet
about his need for additional leave. We are therefore not con-
fronted with the issue of an uncooperative or elusive em-
ployee already given some leave as in Brown and Gilliam.
Based on these considerations, a jury could reasonably con-
clude that Cloutier had provided sufficient notice to GoJet of
his need for leave, precluding judgment as a matter of law for
GoJet.
In conclusion, we reject all GoJet’s arguments that the dis-
trict court erred in denying its motion for judgment as a mat-
ter of law.
C. Damages
We now turn to the issues arising from Cloutier’s cross-
appeal related to the district court’s award of damages. We
begin with an overview of the relevant proceedings in the dis-
trict court before turning to the issues presented on cross-ap-
peal.
1. District Court Damages Proceedings
After the jury reached its verdict in favor of Cloutier that
GoJet had interfered with his FMLA rights in bad faith and

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34 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
retaliated against him in violation of the FMLA, the district
court held a bench trial to determine what back pay, liqui-
dated damages, and front pay to award Cloutier. Relevant to
the court’s analysis, Cloutier found new employment at a re-
gional airline, SkyWest Airlines (“SkyWest”), fourteen
months after GoJet terminated him. SkyWest hired Cloutier
as a First Officer, a position paying substantially less than his
higher-ranking post as a Captain for GoJet.
First, the district court addressed the issue of back pay in
a January 4, 2019 memorandum opinion and order. It began
with the principle that “recoverable back pay consists of the
amount that the plaintiff would have earned had he not been
unlawfully terminated, less amounts earned between the ter-
mination and entry of judgment that the plaintiff would not
have earned but for the unlawful termination.” (Citing
Chesser v. State of Illinois, 895 F.2d 330, 337 (7th Cir. 1990)). The
district court then helpfully laid out the issues in dispute:
• the number of hours Cloutier would have
worked at GoJet had he not been termi-
nated …
• whether Cloutier’s potential earnings for a
position at Republic Airways that he turned
down should be deducted on the basis of
failure to mitigate …
• whether an offer of reinstatement that GoJet
made in May 2017, a little under 17 months
after Cloutier first filed this lawsuit, cuts off
back pay at that point
Taking each issue in turn, the district court first decided to
use the minimum guaranteed number of monthly flight hours
for a GoJet pilot (seventy-five hours per month) to calculate

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 35
Cloutier’s would-be hours at GoJet. It did so because “[g]iven
[Cloutier’s] other commitments and his side law practice,
he … failed to show by a preponderance of the evidence that
he would have worked more than the amount that was guar-
anteed to him under the collective bargaining agreement.”
Second, the court rejected GoJet’s argument that Cloutier’s
failure to accept an offer of employment from Republic Air-
ways constituted an unreasonable failure to mitigate damages
because of certain “risks inherent in taking this job.”5 Third,
the court did not think Cloutier’s rejection of GoJet’s offer of
reinstatement was unreasonable because “GoJet ha[d] failed
to establish by a preponderance of the evidence that … the
offer was truly unconditional or that Cloutier’s non-ac-
ceptance was unreasonable.” Accordingly, the court deter-
mined an initial back pay amount of “$174,864.23 ($299,280.12
in anticipated GoJet wages, less $124,415.89 earned at Sky-
West).” The court then added “$13,041 in lost health insur-
ance benefits” to this amount, bringing the total back pay to
$187,905.23.
Second, also in its January 4 order, the court addressed
what amount of liquidated damages to award Cloutier based
on the jury finding for him on his FMLA retaliation claim and
FMLA interference claim. “‘[L]iquidated damages equal to
the sum of the amount’ of the loss plus interest” are permissi-
ble “unless the employer can show that it acted in good faith.”
See Wink v. Miller Compressing Co., 845 F.3d 821, 823 (7th Cir.
2017) (quoting 29 U.S.C. § 2617(a)(1)(A)(iii)). To that end, the
5 Such risks included the “perceived financial instability” of Republic
Airways, as well Republic Airways’ requirement that Cloutier promise to
pay the airline $25,000 in the event he left the job prematurely.

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36 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
district court viewed the “most reasonable interpretation of
the jury’s verdict” as follows:
• FMLA interference claim: GoJet interfered
with Cloutier’s FMLA rights by failing to
give him sufficient time to get his medical
certification, and this—through a series of
events—contributed to his termination. Go-
Jet’s interference was not in good faith be-
cause it lacked reasonable grounds to be-
lieve that it was not violating the FMLA in
shorting Cloutier on the time he had to sub-
mit his medical certification.
• FMLA retaliation claim: Cloutier’s taking of
FMLA leave was one of the reasons, but not
the only reason, motivating GoJet’s termina-
tion of his employment. GoJet acted in good
faith, however, because it had reason to be-
lieve that its other motivating factors legally
authorized it to terminate Cloutier’s em-
ployment irrespective of the single prohib-
ited motivating factor.
Based on these interpretations, the court found that “Cloutier
[was] entitled to liquidated damages equal to the full amount
of his back pay.” It therefore awarded Cloutier an additional
$187,905.23 in liquidated damages.
Third, the court addressed the issue of front pay. In its Jan-
uary 4 order the court noted that “[f]ront pay is a form of eq-
uitable relief, essentially given in place of an injunction when
reinstatement is not a viable option.” (Citing Traxler v.
Multnomah County, 596 F.3d 1007, 1011–12 (9th Cir. 2010); Pol-
lard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001)).

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 37
The court determined that “Cloutier [was] entitled to front
pay through June 2023, his date of mandatory retirement as a
pilot” and that the “recoverable amount [was] to be based on
the same calculation used to determine back pay—specifi-
cally, the amount of pay for the minimum hours guaranteed
to GoJet pilots at the contractual hourly rate, less Cloutier’s
anticipated earnings from SkyWest for the same period.” The
court could not fully determine that “first figure,” so it de-
cided to “reopen[] the evidence for this sole point.”
After the parties supplied additional evidence, the court
issued another memorandum opinion and order on January
24, 2019, determining the amount of front pay to award Clout-
ier. The court predominately relied on a spreadsheet pro-
vided by GoJet “showing how much Cloutier would make at
GoJet during the relevant period for 75 hours per month, the
minimum guaranteed flight time.” It then took GoJet’s projec-
tion of “Cloutier’s SkyWest hours for the same period, using
not a figure of 75 hours per month but rather 95 hours, which
[was] the number of hours Cloutier [had] been flying monthly
for SkyWest.” Based on the anticipated amount of money
Cloutier would make flying seventy-five hours per month at
GoJet less the anticipated amount he would make flying
ninety-five hours per month at SkyWest, the district court de-
termined a net amount of front pay of $50,683.00.
Cloutier challenged the court’s calculation of front pay, ar-
guing that it was “inappropriate to use a minimum-monthly-
guarantee number for the GoJet figure but an extrapolated ac-
tual number for the SkyWest figure.” In Cloutier’s view, the
court should have calculated both figures based on the same
hourly input, either the minimum of seventy-five hours per
month or the ninety-five hours per month he had actually

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38 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
worked at SkyWest. If the district court chose the former op-
tion, Cloutier would have been entitled to front pay of
$254,561.58; if it chose the latter, Cloutier would have been
entitled to front pay of $321,825.41.
Despite “some initial appeal,” the district court found
Cloutier’s argument lacked merit. The court had already de-
termined in its earlier damages order that seventy-five hours
per month was the appropriate number of GoJet hours to use
to calculate front pay because Cloutier’s “other commitments
and his side law practice” meant he could not prove he would
work more than this monthly minimum. The district court
thus needed only to determine what hourly figure to use to
calculate Cloutier’s SkyWest hours—the amount Cloutier ac-
tually flew at SkyWest or the same seventy-five-hours-per-
month minimum used to calculate Cloutier’s anticipated
earnings at GoJet. The court decided:
[T]he evidence establishes that Cloutier is likely
to continue working the same amount of hours
as he has been, specifically, 95 hours per month.
It is true that this is more than the number of
hours he has shown he would have worked at
GoJet, but the difference is justified: the hourly
pay is significantly greater at GoJet (as shown
by the small amount of front pay GoJet’s calcu-
lation establishes), meaning that Cloutier has to
work longer hours at SkyWest to make the same
amount he would have been guaranteed at Go-
Jet.
The court therefore adopted GoJet’s calculation and awarded
Cloutier front pay of only $50,683. After adding this front pay

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 39
amount to the back pay and liquidated damages amounts, the
court awarded Cloutier a total of $426,493.46 in damages.
2. Cloutier’s Cross-Appeal
Cloutier advances four theories in his cross-appeal for
why the district court erred in calculating damages. We ad-
dress each in turn and reject all but one.
a. Calculating damages based on minimum
hours at GoJet
Cloutier first argues that the district court erred in finding
that had Cloutier not been terminated and continued working
for GoJet, he would have only worked the minimum of sev-
enty-five hours per month. This is a finding of fact that we
review “only for clear error.” BRC Rubber & Plastics, Inc. v.
Cont’l Carbon Co., 981 F.3d 618, 622 (7th Cir. 2020). “A finding
of fact is clearly erroneous only when the reviewing court is
left with the definite and firm conviction that a mistake has
been committed.” Gaffney v. Riverboat Servs. of Ind., Inc.,
451 F.3d 424, 447 (7th Cir. 2006) (citation omitted). We may
not “reverse the finding of the trier of fact simply because [we
are] convinced that [we] would have decided the case differ-
ently.” Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985). “If the district court’s account of the evidence is plau-
sible in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the ev-
idence differently.” Id. at 573–74.
Cloutier argues that the district court clearly erred in using
the seventy-five-hours-per-month minimum guaranteed un-
der the Collective Bargaining Agreement to calculate back
and front pay. He asserts that various trends in the airline

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40 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
industry around the time of his termination show he would
have worked well over this minimum. Cloutier presented ev-
idence of a severe pilot shortage in 2015, which could have
potentially resulted in him earning double or triple his base
pay had he worked extra during this period. He further testi-
fied that he “would have worked the most [he] could,” as he
had during prior pilot shortages when flying for other air-
lines.
Even accepting all of that as true, we hold the district court
did not abuse its discretion because it plausibly could have
found that Cloutier would have worked the minimum num-
ber of hours from his termination date onward. When he was
terminated, Cloutier confirmed that he had only been work-
ing the minimum of seventy-five hours per month because he
had been focusing on getting his law practice and personal
life in order. While he asserts he was waiting for the “looming
pilot shortage,” in the years preceding his termination he had
only worked the minimum amount, and at times even less.
The district court thus reasonably concluded that Cloutier
would have only worked seventy-five hours per month at Go-
Jet based on both his then-recent track record and the court’s
view that Cloutier’s non-piloting obligations were assuming
a more central role in his life. We therefore do not have a “def-
inite and firm conviction that a mistake [had] been commit-
ted” when the district court made that finding. Gaffney, 451
F.3d at 447.
As further support for “clear error,” Cloutier notes that he
provided a spreadsheet reflecting that he had been working
ninety-five hours per month at SkyWest. He asserts that this
spreadsheet contradicts the district court’s assumption that he
would have only worked seventy-five hours per month had

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 41
he remained at GoJet. While a closer issue, the district court
did not clearly err in concluding that Cloutier would have
worked less at GoJet, even with knowledge that he worked
more at SkyWest. SkyWest paid its pilots less than GoJet and
Cloutier also received a lower salary due to his rank as First
Officer, rather than Captain. Therefore, to maintain the same
take-home income when he switched jobs, he had to work
more hours at SkyWest than he had at GoJet. The ninety-five
hours per month he worked for SkyWest, then, does not nec-
essarily indicate how much he would have worked in the bet-
ter-paying job at GoJet. Even if we were “convinced that [we]
would have decided the case differently,” we decline to find
clear error because the “district court’s account of the evi-
dence is plausible in light of the record viewed in its entirety.”
City of Bessemer City, 470 U.S. at 573–74.
b. Calculating front pay damages based on
earnings for twenty more hours per month
at SkyWest
Cloutier also argues that the district court abused its dis-
cretion when calculating front pay damages “when it ruled
that plaintiff had to work 20 hours more per month at Sky-
West to make up for the lower rate of pay” compared to GoJet.
“We review disputes over the actual amount of damages
awarded for an abuse of discretion.” SNA Nut Co. v. Häagen-
Dazs Co., Inc., 302 F.3d 725, 734 (7th Cir. 2002). “Given the in-
herent difficulty of calculating damages for things that might
have—but have not, in fact—occurred,” we afford “very con-
siderable discretion” to the district court. Downes v.
Volkswagen of Am., Inc., 41 F.3d 1132, 1142 (7th Cir. 1994).
“An employee may be entitled to both back pay and front
pay as a remedy for losses flowing from an employer’s

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42 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
interference with his substantive rights under the FMLA ….”
Franzen, 543 F.3d at 426. The FMLA provides that a wronged
employee may be entitled to the equitable remedy of rein-
statement under 29 U.S.C. § 2617(a)(1)(b), but front pay may
also suffice: “front pay is the functional equivalent of rein-
statement because it is a substitute remedy that affords the
plaintiff the same benefit (or as close an approximation as
possible) as the plaintiff would have received had she been
reinstated.” Williams v. Pharmacia, Inc., 137 F.3d 944, 952 (7th
Cir. 1998); see also, e.g., Bruso v. United Airlines, Inc., 239 F.3d
848, 862 (7th Cir. 2001) (“When reinstating a successful Title
VII plaintiff is not feasible, front pay is usually available as an
alternative remedy.”).
A “front pay award gives the employee the present value
of the earnings from her old job less the earnings from her
new (or expected) job.” Williams, 137 F.3d at 954. Importantly,
“[w]e have cautioned that a person discharged—even ille-
gally—cannot simply refuse to seek other employment and
expect his former employer to pay his salary until he reaches
retirement age.” Franzen, 543 F.3d at 429–30.
We hold the district court erred when it calculated front
pay based on two different values for how much work the
court expected Cloutier to work at GoJet and SkyWest. By its
calculation methods, the district court inadvertently re-
warded GoJet at the expense of Cloutier, the harmed em-
ployee.
In calculating front pay, the district court used the amount
that Cloutier would have made at GoJet if he worked seventy-
five hours per month, less the amount the court expected him
to make at SkyWest if he worked ninety-five hours per month.
The district court justified this disparity—calculating his

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 43
anticipated wages at GoJet at only seventy-five hours per
month while calculating his anticipated wages at SkyWest
based on ninety-five hours per month—because “Cloutier has
to work longer hours at SkyWest to make the same amount
he would have been guaranteed at GoJet.” Cloutier challenges
the district court’s use of inconsistent figures as inherently un-
fair because it obligates the “victim of unlawful discrimina-
tion” to “work longer hours at his new job so that he can make
the ‘same amount’ as he would have made at his old job.” We
agree with Cloutier.
A National Relations Labor Board order and a Sixth Cir-
cuit decision addressing back pay reflect a concern over cre-
ating “the ridiculous anomaly whereby an assiduous and dil-
igent backpay claimant would be penalized for toiling a 24-
hour day whereas a shirker would be rewarded.” United Air-
craft Corp., 204 N.L.R.B. 1068, 1073 (1973). With reference to
this same order, the Sixth Circuit recently said:
If [a] former employer is allowed to base deduc-
tion calculations solely on dollars earned, [an
employee’s] extra effort each week redounds to
the benefit of [the employee’s] discriminating
employer, contrary to the goals of the NLRA.
“Earnings from such extra effort, whether ex-
erted on ‘excess overtime’ or a ‘moonlighting’
job, should operate to the advantage of the back-
pay claimant, not of the employer required to
make him whole for a discriminatory dis-
charge.”
Lou’s Transp., Inc. v. NLRB, 945 F.3d 1012, 1022–23 (6th Cir.
2019) (quoting United Aircraft Corp., 204 N.L.R.B. at 1073).

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44 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
While these decisions do not address front pay, their logic
nonetheless applies here.
Approving of the district court’s inconsistent monthly
work figures for calculating front pay in this case risks creat-
ing a perverse incentive for would-be FMLA plaintiffs to
work less in their new jobs. From a strictly economic stand-
point, a rational actor in Cloutier’s position has no incentive
to go the extra mile and work more than the bare minimum if
that added effort will only be discounted against his antici-
pated earnings at his prior job (assuming the employee other-
wise satisfies their duty to mitigate damages, see Franzen, 543
F.3d at 430). Under the district court’s reasoning, Cloutier
would have fared better by simply working the bare mini-
mum both to elicit more in front pay damages (i.e., so the dis-
trict court would not subtract more from his total front pay
damages) and to free up twenty more hours of his time each
month. We therefore conclude the district court abused its
discretion by endorsing the type of anomaly our courts strive
to avoid. See United Aircraft Corp., 204 N.L.R.B. at 1073.
To be clear, the court did not abuse its discretion (nor
clearly err) in reaching each of its independent conclusions:
first, that Cloutier would have only worked seventy-five
hours per month at GoJet and, second, that Cloutier would
work ninety-five hours per month at SkyWest. In isolation,
each of these conclusions draw support from the record. The
problem lies in the combination of these inferences. The dis-
trict court needed to calculate the anticipated hours for front
pay at GoJet and SkyWest based on the same expected hours
per month of work. In other words, the court had to assume
either that Cloutier would only work the minimum guaran-
teed hours at GoJet and at SkyWest, or that Cloutier would

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Nos. 19-1322, 19-1773, 19-1823 & 19-3279 45
work ninety-five hours per month at GoJet and at SkyWest.
We reverse and remand on this issue alone for the district
court to apply a uniform hourly figure to calculate expected
earnings at GoJet and SkyWest for the purposes of front pay.
c. Accepting post-trial evidence
Cloutier next argues that the district court abused its dis-
cretion by basing its front pay calculations on evidence GoJet
provided post-trial, which Cloutier asserts lacked foundation.
Cloutier waived this argument because he failed to cite a sin-
gle case in support of it and failed to meaningfully develop
the argument on appeal. See Pelfresne v. Village of Williams Bay,
917 F.2d 1017, 1023 (7th Cir. 1990) (finding a litigant forgoes a
point by not “supporting it with pertinent authority, or by
[not] showing why it is sound despite a lack of supporting
authority”). He began to add some color to the argument in
his reply brief, but “arguments not fully developed until a re-
ply brief are waived.” Bodenstab v. County of Cook, 569 F.3d
651, 658 (7th Cir. 2009) (citing United States v. Alhalabi, 443 F.3d
605, 611 (7th Cir. 2006)).
d. Calculating error
Finally, Cloutier argues that even if the district court had
selected the correct methodology for calculating damages, it
nevertheless still erred in its calculation and thus erred in
denying his motion under Federal Rule of Civil Procedure
59(e) complaining of a “mathematical error in the judgment.”
The district court denied his motion, finding he had forfeited
any objection to the front pay damages. Cloutier does not
acknowledge this portion of the district court’s analysis and
instead argues on appeal that “the court took [GoJet]’s post-
trial research, unsubstantiated and without foundation,

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46 Nos. 19-1322, 19-1773, 19-1823 & 19-3279
projected that out for almost 5 years, and came up with a
number.” He asserts “[t]hat number would be the equivalent
of Plaintiff working 134.39 hours per month at Sky[W]est and
not the 95 the court said it would use. That was error.” These
assertions represent the entirety of Cloutier’s argument on
this point.
We conclude Cloutier waived this final argument as well.
As with the post-trial evidence issue, he provides little to no
support for his argument on appeal, nor does his opening
“brief … engage with the reasons the district court gave for its
dismissal.” Di Joseph v. Standard Ins. Co., 776 F. App’x 343, 349
(7th Cir. 2019). In sum, these shortcomings amount to waiver.
See id. (citing cases); Bodenstab, 569 F.3d at 658. Moreover,
Cloutier also did not raise the issue of a calculation error be-
fore the district court until after it had determined the dam-
ages award. Cloutier thus also waived the argument in the
district court and cannot revive it on appeal. See Walker v.
Groot, 867 F.3d 799, 802 (7th Cir. 2017).
III. Conclusion
For the reasons explained above, we REVERSE the district
court only as to its use of two different hourly figures to cal-
culate front pay damages and AFFIRM as to all other issues on
appeal. We REMAND for further proceedings consistent with
this opinion.

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