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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Municipality of Anchorage v. Gregg (11/12/2004) sp-5842

Municipality of Anchorage v. Gregg (11/12/2004) sp-5842

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

MUNICIPALITY OF               )
ANCHORAGE and MARC       )    Supreme Court No. S-10722/10751
WOODWARD,                )
                              )    Superior Court No.
     Appellants/Cross-Appellees,   )    3AN-98-10263 CI
                              )
     v.                       )    O P I N I O N
                              )
THERESA A. (WIMER) GREGG,     )    [No. 5842 - November 12, 2004]
                              )
     Appellee/Cross-Appellant.     )
                              )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage,  Rene J. Gonzalez and  William  F.
          Morse, Judges.

          Appearances:    Linda  J.   Johnson,   Deputy
          Municipal  Attorney, and William  A.  Greene,
          Municipal     Attorney,    Anchorage,     for
          Appellants/Cross-Appellees.    Kenneth     W.
          Legacki,   Anchorage,   for   Appellee/Cross-
          Appellant.  Jonathan P. Meier, Sirianni Youtz
          Meier & Spoonemore, Seattle, for Amici Curiae
          Northwest   Womens  Law  Center  and   Alaska
          Network  on  Domestic  Violence  and   Sexual
          Assault.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          BRYNER, Chief Justice.

I.   INTRODUCTION

          Theresa  Gregg  sued the Municipality of Anchorage  and

her  supervisor, Sgt. Marc Woodward, for violating her  right  to

protected  leave under the Family and Medical Leave  Act  (FMLA).

In  a bench trial, the superior court found that the Municipality

had  violated  the  Act by refusing Gregg  leave  while  she  was

incapacitated by a serious health condition: the combined  effect

of  her  pregnancy,  injuries from a  car  accident,  and  severe

emotional  stress.   The Municipality appeals,  disputing  Greggs

qualification for the FMLAs protection, the factual  findings  of

the  trial  court, and its award of damages.  Gregg cross-appeals

that  she was improperly denied liquidated damages.  Both parties

assert  that  the courts calculation of interest on Greggs  award

was  erroneous.   We  affirm the trial courts judgment  that  the

Municipality violated Greggs right to protected leave  under  the

Act, correct two errors in the courts calculation of damages, and

remand  for  reconsideration  of the  award  of  prejudgment  and

postjudgment interest and liquidated damages.

II.  FACTS AND PROCEEDINGS

          In this case the superior court made extensive findings

of  fact.  The thrust of the Municipalitys appeal is that some of

these  findings are in error and cannot support the trial  courts

decision.   We  summarize the record and the courts  findings  as

follows.

          The  Anchorage  Police Department (APD)  hired  Theresa

Gregg  (formerly  Wimer) in March of 1995.  In  late  1996  Gregg

transferred to the APDs warrant section, where her supervisor was

Sgt. Marc Woodward.  Greggs employment record was excellent,  and

she was held in high regard by her fellow officers.

          In  January 1997 Gregg was involved in a car  accident.

At  the time of this accident, Gregg was married to Michael Wimer

but was approximately two-and-a-half months pregnant with a child

by  her  current husband, APD officer Jeffery Gregg.  On  January

10, Woodward placed Gregg on sick leave status because of her car

accident injuries.

          During  this leave, Greggs husband, Michael  Wimer,  an

Army  JAG  officer, was arrested for threatening to kill  Jeffery

Gregg.   The trial court summarized the events leading to  Wimers

arrest as follows:

          Theresa was married to Michael Wimer and they
          had  two  minor  children . .  .  .   Theresa
          described  her  marriage  to  Michael  as  an
          unhappy   marriage.   It  involved   domestic
          violence  where Michael was mentally  abusive
          and exercised extreme control over all facets
          of  her life.  Theresa became involved in  an
          extra-marital  affair  with  another   police
          officer, Jeffery Gregg, with whom she  became
          pregnant.    When  Michael  discovered   that
          Theresa  was pregnant with Greggs  child,  he
          called Gregg and threatened him.  Gregg filed
          a  criminal  complaint against Wimer  and  an
          arrest warrant was issued.  Theresa felt that
          she  was  in a hostage situation with Michael
          and  cooperated with APD to get Michael in  a
          disadvantaged situation in a public place for
          the  arrest  to take place.  The arrest  took
          place  at  the  Buckner Field House  at  Fort
          Richardson military base.
          
          The  parties  stipulated  that  during  January,  three

different  health  care  providers treated  Gregg.   Dr.  Cynthia

Brooke  examined Gregg for her pregnancy, and in a  letter  dated

January  14, requested that lighter duties be assigned to [Gregg]

for  the  remainder of her pregnancy.  Dr. Ronald Firth  examined

her accident injuries and released her back to full, unrestricted

duties as of January 27.  Gregg was still suffering pain from her

accident injuries and saw Dr. Firth again on January 28.  On this

visit  she also discussed the stress of her marriage.  Dr.  Firth

prescribed  her  Valium.  Although she was  technically  released

back to work, Gregg did not return to the department and remained

on  paid  sick leave.  The trial court found that [t]he two  work

releases  Theresa  received were related  only  to  the  injuries

sustained  in  the car accident and to her pregnancy.   The  work

releases did not address . . . the psychological stress  she  was

suffering  as  a  result of the domestic violence and  subsequent

arrest of her husband.

          Gregg  and  Woodward discussed her  leaving  the  state

while she was on sick leave.  Woodward was concerned about Greggs

domestic situation.  Before Wimers arrest, Woodward reported  his

fear  that  Gregg  was  at risk of harm from  domestic  violence.

After  Wimers  arrest, APD Captain William  Miller  suggested  to

Gregg that she go somewhere she felt safe.

          Wimer  was arraigned on February 5.  Gregg was  present

at  the arraignment. At the arraignment, Wimer stated that he was

getting ready [for a permanent change of station] within a couple

weeks.   Gregg  also told the court that [w]ere moving,  and  she

agreed to be Wimers third party custodian.

          On  February 5, Woodward wrote a memo to Captain  Bruce

Richter  explaining that [Gregg] wants to go to her mother[]s  in

Florida  with her kids to work things out.  She is still on  sick

leave  and  is  planning  to  see  a  doctor  there  to  continue

treatment.  Captain Richter approved Greggs request.

          Gregg left Alaska for Florida.  Wimer followed her, and

eventually   obtained  a  transfer  to  Virginia.    The   couple

unsuccessfully attempted a reconciliation. At some point, Jeffery

Gregg  went to Virginia, endeavoring to bring Theresa Gregg  back

to  Alaska.  This led to a physical confrontation between Jeffery

Gregg  and  Michael  Wimer.   Jeffery Gregg  returned  to  Alaska

without Theresa.

          From  February  until the end of March,  Gregg  was  in

regular  contact  with  the  department  through  Woodward.    On

March  3,  1997, Woodward changed Greggs leave status  from  sick

leave  to  annual  leave when he learned that she  was  medically

released back to work.  Gregg intended to return to her job,  and

she  requested to be placed on leave without pay status in  order

to  resolve  her  personal issues.  Woodward told  her  that  the

department had denied her request.

          At  trial,  the  command  staff above  Woodward  denied

knowledge  of  Greggs request for leave without pay.   Under  the

departments  policies, a supervisor must inform  an  officer  who

makes  an  oral request for leave without pay that such  requests

are to be made in writing to the chief of police.  Woodward never

told  Gregg that she needed to file a written request.   Although

aware  that  Gregg was in need of mental help at this  time   and

knowing  that  she had begun her leave suffering  from  injuries,

pregnancy,  and tremendous domestic stress  Woodward also  failed

to  inform  Gregg  of  her rights to leave under  the  state  and

federal  family  and medical leave acts.  In  fact  at  no  time,

before or after Greggs pregnancy, accident, and request to  leave

the  state,  did anyone from the APD tell Gregg of her  right  to

statutory leave.

          On  April  11, a Friday, Woodward told Gregg,  who  was

apparently  still  in Florida, that she must return  to  work  on

Monday or be terminated for abandoning her position.  Gregg asked

for  more time to get her life together, to address her financial

situation  that  needed  to be put in order,  to  deal  with  her

pregnancy, to protect her children, to deal with her injuries . .

.  all  these  things.  For the second time she asked  for  leave

without  pay,  but Woodward told her that this request  had  been

denied.

          Gregg  knew that termination would threaten her officer

certification,  which would in turn harm her  chances  of  rehire

with  the  department.   On  the day  of  her  conversation  with

Woodward, Michael Wimer faxed a copy of Greggs signed resignation

to  the department.  Within days, Gregg called Woodward to cancel

her resignation, but he refused.

          Greggs  resignation terminated her employment with  the

department  effective  April 11.  Department  personnel  director

Wray  Kinard indicated on Greggs personnel action form that Gregg

was  eligible  for  rehire.  On a second personnel  action  form,

filed May 6, 1997, Kinard changed Greggs rehire recommendation to

a  negative.  In  a  note attached to the  form,  Kinard  stated,

[Gregg] left the state without notification or coordination  with

APD.    She  resigned  by  FAX  transmission.   Kinards  negative

recommendation  was  based on information provided  by  Woodward,

which  the  court found to be factually incomplete and inaccurate

in many significant regards.

          After  Gregg returned to Anchorage in August 1997,  she

twice  applied  for rehire with the department.   The  department

denied Greggs applications because of Woodwards criticism.

          On  January  22,  1999,  Gregg sued  Woodward  and  the

Municipality  alleging, among other claims, that the Municipality

had wrongfully terminated her and violated the Family and Medical

Leave Act.   In a bench trial before Judge Rene Gonzalez in  July

of  2001,  the  superior court found that  the  Municipality  had

violated  Greggs FMLA rights and wrongfully terminated her.   The

court  awarded  Gregg economic losses of $628,706.27,  but  found

that  liquidated  damages  were  unwarranted.   The  Municipality

appeals, and Gregg cross-appeals.

III. DISCUSSION

     A.   The Municipalitys Appeal

          The Municipality argues that the court erred in finding

that  it  violated the FMLA because Gregg did not suffer  from  a

serious  health  condition  or undergo  continuing  treatment  as

defined in the Act; because she failed to give notice as the  Act

requires;  and  because  the  APD had  already  given  her  leave

equivalent  to  the amount the Act would have granted  her.   The

Municipality  also contends that the court erred in finding  that

it  wrongfully terminated Gregg, and in finding Greggs  testimony

credible.  Finally, the Municipality argues that the court  erred

in  its  calculation of damages and in its award of  postjudgment

interest.

          1.   Standard of review

          To  the extent that the trial courts decision relied on

findings of fact, we review under the clearly erroneous standard.1

Under  this  standard we reverse only when we  are  left  with  a

definite  and  firm  conviction that a mistake  has  been  made.2

          Therefore, we must  take the view of the evidence most favorable

to  the prevailing party below,  and give due regard to the trial

courts opportunity to judge the credibility of the witnesses. 3

          We review questions of law de novo.4  A claim under the

FMLA  involves  an  objective test of the plaintiffs  incapacity,

which, if heard by a fact-finder, presents mixed questions of law

and fact.5

          2.   Family and Medical Leave Act

          Under  the  FMLA,6  an  employee  is  entitled  to   12
workweeks  of leave during any 12-month period for childbirth  or
adoption;  to  care for a close relative with  a  serious  health
condition;  or if the employee is unable to perform  work-related
duties  due  to a serious health condition.7  The  Act  makes  it
unlawful  for any employer to interfere with, restrain,  or  deny
the  exercise  of or the attempt to exercise, any right  the  Act
provides.8
          The  superior  court found that Gregg was  entitled  to
FMLA  leave because she suffered from a serious health  condition
that  made  her  unable  to perform the  functions  of  a  police
officer.   Regulations  implementing the Act  define  a   serious
health  condition  as a period of incapacity  of  at  least  four
consecutive  days that also involves continuing  treatment  by  a
health  care  provider.9  They further define  incapacity  as  an
inability  to work, attend school or perform other regular  daily
activities.10   A  plaintiff  shows  that  he  or  she  underwent
continuing  treatment  by  evidence  that  the  plaintiff  sought
treatment  two  or more times from a health care provider.11   In
short,  the  federal  regulation  allows  an  employee  to  claim
protection under the Act when she is able to show that she had  a
period  of incapacity that lasted four or more days and  involved
at least two treatments from a health care provider.12
               a.     Incapacitation  due  to  a  serious  health

condition

          To claim the protection of the FMLA, Gregg had first to

demonstrate that she was incapacitated for four or more days  and

unable to perform the essential functions of her employment.13  It

is  evident  from  its decision that the court  found  Gregg  was

incapacitated  by multiple health conditions from  January  until

April  11,  1997.   The  superior court  found  that  when  Gregg

requested  leave  without  pay  on  April  11,  she  was  clearly

suffering from the cumulative effect of several health and mental

conditions that constituted a serious health condition that  made

her  unable to perform the functions of a police officer.   These

included  the  facts that [s]he was pregnant, she was  recovering

from  injuries sustained in an automobile accident  and  she  was

going  through significant mental stress.  She was  a  victim  of

domestic  violence and she needed time to deal with her  personal

issues.

          The  court specifically found that testimony by  Greggs

expert, Dr. Cynthia Dodge, who retroactively diagnosed that Gregg

had suffered from post traumatic stress disorder from January  to

July  1997,  had the strong ring of truth.  Dr. Dodge  based  her

conclusion  on  the traumatic event[s] of domestic violence  that

Gregg suffered in January of that year.  Dr. Dodge explained that

the  symptoms of nightmare[s] .  .  . intrusive memories  .  .  .

high  levels  of  anxiety to the point of  sleeplessness  .  .  .

confusion,   feeling   overwhelmed   and   distressed,   and    a

hypervigilance  that Gregg reported were all  consistent  with  a

diagnosis of post traumatic stress disorder.  The doctor  further

concluded that Greggs accident injuries and pregnancy contributed

to this condition.14

          Dr.  Dodges testimony is the only medical evidence that

Gregg  suffered from an incapacitating health condition in  April

1997.    The  parties  stipulated  that  Gregg  did  not  receive

treatment  from  a  health  provider in  April   for  either  her

accident  injuries or emotional distress  and Gregg presented  no

evidence  at  trial  to  show whether or not  she  received  care

          related to her pregnancy at that time.  It is undisputed that the

health professionals that Gregg saw in January released her  back

to her duties.

          The  Municipality disputes the courts conclusion on two

levels.  First, it argues that, as a matter of law, Gregg  cannot

establish that she was incapacitated in April, when she requested

further  leave,  because  she did not obtain  a   contemporaneous

medical  providers  diagnosis  that  she  was  unable  to   work.

Secondly,  it  argues that Dr. Dodges testimony is not  credible,

and that therefore the trial courts finding is without basis.

          Based  upon  its  reading  of  federal  precedent,  the

Municipality  argues  that  the FMLA requires  a  contemporaneous

diagnosis  of the employees incapacity by a health care provider.

It  notes  that Gregg was, at the time of her request for  leave,

technically  released back to work.  And it points  to  the  fact

that  Gregg saw no additional doctors in April to establish  that

she was not entitled to the Acts protection at that time.

          It is true that federal courts generally require that a

plaintiff  base proof of an FMLA claim on a health care providers

diagnosis, at some point, that the employee cannot work (or could

not  have  worked) because of the illness.15  But we do not  read

this  precedent  as  substituting  the  opinion  of  on-the-scene

medical  professionals  for the ultimate judgment  of  the  fact-

finder.   For  one  thing, an employee could, as  in  this  case,

suffer  from a condition, such as post traumatic stress disorder,

which  is  not  immediately  capable  of  diagnosis  by  a   non-

specialist.   When  an  employee  is  actually  incapacitated  by

illness, the failure to get a correct diagnosis cannot disqualify

an employee from the Acts protection.  To hold that a doctor must

agree,  contemporaneously and at all times, that the employee  is

unable  to  work, places a burden on the employee  that  we  find

nowhere in the plain text of the Act, and ignores the reality  of

debilitating illness.

          Instead,  the  Act  allows an  employer  to  request  a

          contemporary diagnosis at the time it grants FMLA leave; a

safeguard  that  balances the rights of employer and  employed.16

The Municipality did not do so.17  While this does not obviate the

requirement   that   Gregg  show  that  a  medical   professional

considered   her  to  be  incapacitated,  there  was  substantial

evidence  in the record in addition to Dr. Dodges testimony  that

corroborates the conclusion that Gregg was incapacitated.18  Once

the  trial  court accepts evidence of a medical professional,  in

this  case Dr. Dodge, that the plaintiff was incapacitated,  that

finding is protected by the clearly erroneous standard.19

          The  Municipality also argues that the fact that health

care providers she saw in January actually released Gregg back to

work  should  bar her claims of incapacity in April.   While  the

health care providers that Gregg saw in January 1997 released her

back  to  work, the court found that  possibly due to the  narrow

focus  of  their  examinations  they did not fully  diagnose  her

combination  of debilitating health conditions.   In  fact,  they

were  unable  to determine the extent of even her  knee  injuries

because  she  could not be x-rayed while she was  pregnant.   The

court found that Gregg continued to suffer pain from her accident

injuries,   and   neither   release  adequately   addressed   her

psychological  stress.  We conclude from these findings  that  in

the  course of Greggs visits to health care providers in January,

the  extent  of  her incapacity was never fully  diagnosed,  and,

therefore, the partial releases do not bar her claim.

          The Municipality also disputes the factual basis of the

courts  decision.  It asserts that Dr. Dodges testimony  was  not

credible  because her diagnosis was retroactive; because  it  did

not  definitely establish that Gregg was incapacitated for  three

or  more  days in April; and because Dr. Dodge did not know  what

the  functions of the job of a police officer at APD were .  .  .

[she]  therefore  could  not and did not  render  an  opinion  of

whether  [Greggs]  alleged post traumatic stress  disorder  would

have  prevented her from performing the functions of  her  police

          officer job.  The Municipality also notes that Dr. Dodge

concurred  that malingering should be suspected when  a  litigant

seeks  a  post  traumatic stress diagnosis.  We address  each  of

these concerns with Dr. Dodges testimony in turn.

          While courts have rejected retroactive diagnoses, it is

generally  for  other  evidentiary  reasons,  such  as  when  the

diagnosis   was  also  speculative  or  given  without   actually

examining the patient.20  The cases cited by the Municipality  do

not  hold  that retroactive medical diagnoses may never establish

an FMLA claim.  Here, the superior court was in the best position

to  weigh Dr. Dodges retroactive diagnosis, subject to the  rules

of  evidence,  and concluded that her opinion was  credible.   We

will not second guess the credibility of a witness on review.

          The  Municipality also argues that Dr. Dodges testimony

did not establish that Gregg suffered from a period of incapacity

in  April  because Dr. Dodge did not know when the post traumatic

stress  disorder began nor when it ended, and so could  not  have

testified  that  a  definite period of incapacity  existed.   The

Municipality  is correct that Dr. Dodge could not  determine  the

exact  date  when  Greggs  mental  and  emotional  stress  became

incapacitating.  But Dr. Dodge did state that it was her  opinion

that  Gregg  suffered  the symptoms of  a  stress  disorder  from

January  to  July 1997.  In this bench trial, it was  the  courts

role  to  determine  if this broad diagnosis, together  with  the

other  facts of the record, reasonably established that in  April

Gregg was incapacitated for three or more days.

          Finally,  the Municipality asserts that Dr.  Dodge  was

not qualified to decide if Gregg was unable to perform the duties

of  a  police officer.  Dr. Dodge admitted that she did not  know

the  basic  qualifications  of a police  officer,  but  she  also

testified  that,  in  her opinion, a person suffering  from  post

traumatic stress disorder would not be competent for police  work

because of the high level of symptoms.  What Dr. Dodges testimony

lacked  in  precision  on this point is supplied  by  other  non-

          medical evidence in the record.

          Beyond Dr. Dodges diagnosis, the facts as found by  the

trial  court support its conclusion that Gregg was incapacitated.

Significantly, Woodward, Greggs immediate supervisor and the only

department officer reviewing her case, admitted in testimony that

Gregg  might  have required a psych evaluation before  she  could

return  to work to see if her emotional stress was affecting  her

judgment.   The Municipality as much as admits this in its  brief

when  it  states, Based on what he had seen of [Greggs] behavior,

Woodward believed that she should have been assessed for judgment

issues.   Judgment is a key concern for police  officers.   Gregg

did  testify  that  she continued to suffer from  pain  from  her

accident injuries and saw a specialist in October 1997, when  she

could be x-rayed after the birth of her child.  And the fact that

Gregg  was  in  an abusive domestic relationship is  relevant.  A

reasonable  person  could  conclude that  Gregg  was  effectively

unable  to  work because she fled the state to leave  an  abusive

husband  who  followed her, and that she was  unable  to  perform

daily  activities  because she was held in a  hostage  situation,

where  her behavior was dictated by the combination of  fear  for

her  children,  a  high level of emotional stress,  her  accident

injuries, and her pregnancy.21

               b.   Continuing treatment

          To earn the protection of the FMLA for a serious health
condition,  a  plaintiff must also establish that her  period  of
incapacity involved treatment two or more times by a health  care
provider.22   The Eighth Circuit has observed that this  reflects
the [Department of Labors] decision that serious health condition
should  be  defined by an objective test that  could  be  applied
consistently  based  on the facts of each case.23   The  superior
court found that Gregg had satisfied this requirement because she
visited  three  medical providers for treatment of  her  accident
injuries and pregnancy in January 1997.
          The  Municipality  maintains that  the  superior  court
erred  in  relying  on  this period of  treatment  because  these
          providers released Gregg back to light duty at the end of
January.   It  contends that Gregg would have to  show  that  she
received  treatment in April when her request for  further  leave
was denied, to qualify for further FMLA leave.
          The  Municipalitys first argument would read  into  the
regulations  a requirement that the length of an employees  leave
should  be  determined  by  a medical professional,  rather  than
decided  as an accommodation between employer and employee.   The
purpose  of  the  second regulatory factor is  verification.   It
simply  requires that the employees serious health  condition  be
serious  enough to require two or more visits to  a  health  care
provider.24  Such is the objective test.25  The Act then entitles
the  employee to leave for any subsequent treatment or period  of
incapacity relating to the same condition.26
          The  plain  text of the regulation proves that  it  was
unnecessary for Gregg to seek further treatment in April and  yet
still   claim  the  Acts  protection.   Gregg  saw  three  health
providers  in  January.   The court  found  that  she  was  still
suffering pain from the car accident after her visits,  and  that
these trips to the doctors did not address the complete extent of
her psychological stress.  Gregg testified that she discussed the
stress  of her marriage with at least one of them, who prescribed
Valium  to Gregg according to his medical records.  Thus, we  may
reasonably conclude that Gregg first qualified for FMLA leave  in
January,  and  since the trial court found that the  same  health
conditions that caused her to seek treatment in January persisted
through   April,  Gregg  suffered  through  April  a  period   of
incapacity relating to the same conditions sufficient to  satisfy
the plain text of the regulation.27
               c.   Notice requirement
          To  invoke the protection of the FMLA, an employee must
notify his or her employer of her intention to take leave.28  The
requirements  of this rule are flexible.  If the  employees  need
for  FMLA  leave  is  based on foreseeable events  or  treatment,
thirty  days notice must be given to the employer.29   Otherwise,
the employee should give notice as soon as is practicable.30  When
the  need  for  leave  is unforeseeable, the  employee  need  not
expressly assert rights under the FMLA or even mention the  FMLA,
but  may only state that leave is needed.31  Under this standard,
whether an employee has given adequate notice will depend on  the
facts and circumstances of each case.32  The critical question is
whether the information imparted to the employer is sufficient to
reasonably apprise it of the employees request to take  time  off
for  a  serious  health condition.33  Accordingly,  the  test  of
whether or not an employee has given adequate notice is a factual
one that we review for clear error.34
          The  Municipality   argues that Gregg  failed  to  give
sufficient notice because she stated only that she needed time to
get  her life back together on April 11 when she requested  leave
without  pay.   It  asserts that Gregg, at a minimum,  needed  to
alert  Woodward  of  her need for medical  treatment  or  another
qualifying reason under the FMLA.
          The  trial  court found that Gregg gave proper  notice,
although  she  did  not expressly invoke the  FMLA.   The  record
supports this conclusion.  The Municipality placed Gregg on  sick
leave  initially and, although her status changed to annual leave
in  March,  the department never alerted her to her rights  under
the  FMLA.   Woodward was in weekly contact with  Gregg  and  was
aware  of  her injuries and domestic situation.  The court  found
Greggs testimony was credible that she informed Woodward on April
11  that  she  needed more time to deal with  her  injuries.   It
concluded that any reasonable person would have seen .  .  .  the
significant mental stress [Gregg] was suffering from  during  the
relevant  times  in  this  case.  But neither  Woodward  nor  the
responsible  department officer, Kinard,  alerted  Gregg  to  her
rights  under the FMLA or considered how the Act might grant  her
protected leave for her incapacity.
          The  court  reasonably determined that Gregg could  not
foresee her need for further leave on April 11.  Gregg was  in  a
stressful  domestic situation, she had left Alaska, and  Woodward
presented  her with an ultimatum on April 11 to either return  to
          Alaska within three days or risk termination for abandoning her
position.   Therefore the Municipality cites incorrectly  to  the
stricter  standards of notice for foreseeable  leave,  29  C.F.R.
825.302(c),  rather  than  825.303, which  governs  unforeseeable
leave.   The  Municipalitys reliance on  case  law  is  similarly
misplaced.35   Instead, federal precedent supports a  finding  of
proper  notice where, as here, the plaintiff was initially placed
on  sick  leave and mentioned an illness during her  request  for
leave.36
               d.   Extent of leave under the FMLA

          Finally,  the  Municipality claims that even  if  Gregg

established  the elements of her FMLA claim, she did not  qualify

for  further  FMLA  protection because by April  11,  1997,   the

Municipality  had  already given her the  full  extent  of  leave

permitted   under  the  Act.   According  to  the   Municipalitys

argument, Gregg took thirteen weeks of leave before she resigned,

which is actually more than the Act guarantees, thus she suffered

no prejudice from its refusal to grant her further leave.37

          The  Municipality failed to raise this factual argument

in  the trial court, and it misstates the trial courts conclusion

on  appeal.  The Municipality could be correct only if the  court

had found that it violated 29 C.F.R.  825.700(a), the failure  to

properly designate Greggs leave.  Section 825.700(a) provides  in

pertinent  part that [i]f an employee takes paid or unpaid  leave

and  the employer does not designate the leave as FMLA leave, the

leave taken does not count against an employees FMLA entitlement.

For   825.700(a) to be relevant, the Municipality would have  had

to establish that it had granted Gregg twelve weeks of FMLA leave

concurrent  with  her regular department leave,  and  had  simply

failed  to  designate it as such. Instead the  court  found  that

Gregg  was entitled to further FMLA leave in April, when she  was

forced  to resign.38  How much additional leave is a question  of

fact, which cannot be raised for the first time on appeal.39

          3.   Wrongful termination

          The trial court held that Gregg had proved her claim of

          wrongful termination by a preponderance of the evidence because

she  was constructively discharged40  forced to either resign  or

risk being fired and losing her certification on April 11  in the

course  of seeking leave that she was entitled to under  federal,

state, and local laws.

          The  Municipality claims that Gregg had a choice  other

than resignation, because she could have returned to a light duty

position  at  APD, and because she was not receiving any  medical

treatment   which  would  have  prevented  her  from   returning.

However,  the  court held explicitly that it was  reasonable  for

[Gregg] to resign based upon the facts of the case.  This finding

may  only  be  reversed  if  clearly  erroneous,  and  there   is

sufficient  evidence in the record for the court  to  reach  this

conclusion.41   The  Municipalitys argument  that  no  reasonable

person  would have  felt compelled to resign in Greggs  situation

is  similarly  defeated by the findings of the trial  court  that

Gregg was between a rock and a hard place where she had to choose

resignation to protect her certification.

          4.   Greggs testimony

          The  Municipality debates the trial courts findings  in

favor  of  Gregg on several disputed facts.  It argues  that  the

courts  belief in Greggs testimony was clearly erroneous  because

other facts in the record contradict her version of events.   The

Municipality  outlines  four points of  error:  (1)  that  Greggs

testimony regarding her actions at her husbands bail hearing  was

inaccurate;  (2)  that  Greggs testimony about  her  purpose  for

leaving Alaska contradicts her earlier admissions; (3) that Gregg

resigned for reasons other than the trial courts conclusions; and

(4)  that  other  evidence  contradicts  Greggs  claim  that  she

attempted to rescind her resignation.

          Because   they   required  an  assessment   of   Greggs

credibility,  we  shall  affirm the trial courts  conclusions  on

these points unless clearly erroneous.42  To reverse, we must have

a  definite  and firm conviction that a mistake has been  made.43

          Gregg reminds us that a trial court does not err simply by

choosing   between  conflicting  evidence.44   Insofar   as   the

Municipality relies upon Woodwards testimony to contradict Greggs

version of events, Gregg points to the trial courts finding  that

Woodward  was less credible than other witnesses who confirm  her

recollections.

          The  Municipalitys  first  contention  is  that  Greggs

deposition  testimony  that  she  waited  outside  her   husbands

February arraignment is irreconcilable with her appearance in the

actual record of that proceeding.  At trial, Gregg admitted  that

she had made a mistake during the deposition: that she had simply

forgotten  that she did, in fact, enter the courtroom for  Wimers

arraignment.  The court was aware of her inconsistency.   It  was

brought out by the Municipality during cross-examination, and  it

was within the courts discretion to accept Greggs excuse.

          Second,  the Municipality protests that Gregg told  the

judge at that arraignment that she expected her husband to follow

her out of state, which is inconsistent with Greggs testimony  in

this case that she fled the state to escape the domestic violence

of  her  marriage.  Again this inconsistency was explored by  the

Municipality during cross-examination, and the court  found  that

Gregg left Alaska to be where she had family support.

          Third,  the  Municipality argues that the trial  courts

conclusion  that Gregg had to resign to protect her certification

conflicts with the fact that her then husband, Michael Wimer, who

knew  nothing  of her conversations with Woodward, faxed  in  her

resignation.  The Municipality maintains that this establishes  a

fundamental  inconsistency and proves  that  Gregg  was  in  fact

reconciling  with Wimer in April when she resigned  and  did  not

intend  to  return to the department.  But the  fact  that  Wimer

faxed  in  Greggs  resignation  is equally  consistent  with  the

premise  that  Gregg  knew  she  had  to  quit  to  preserve  her

certification, knew Wimer wanted her to quit, and allowed him  to

fax  in  the resignation without explaining the circumstances  of

          her conversations with Woodward.

          Finally,  the  Municipality contends that  no  evidence

corroborates Greggs testimony that she called Woodward to rescind

her  resignation.   The Municipality notes  that  Gregg  did  not

mention   the  fact  that  she  had  attempted  to  rescind   her

resignation either in the course of background interviews  during

her attempt to get rehired, or in a subsequent taped conversation

with   Woodward.   Indeed,  at  trial  the  court   allowed   the

Municipality  to  fully impeach Gregg with  this  evidence.   Our

review of the record convinces us that, on this point as well  as

those  above,  the  court reasonably decided between  conflicting

accounts and evidence.

          5.   Prejudgment and postjudgment interest awards

          The   Municipality  asserts  that   the   trial   court

incorrectly calculated the interest on  Greggs damages.  The FMLA

specifically  allows for an award of interest  on  lost  wages.45

Under Alaska law, prejudgment interest is a substantive right  of

an  injured  party.46  The ordinary rule is  that  when  suit  is

brought  in  state court under a federal statute, the substantive

provisions of federal law govern the action.47  For this  reason,

prejudgment and postjudgment interest calculations on FMLA claims

should be decided under federal law.48

          Precedent interpreting the interest award provision  of

the FMLA is sparse.49  Generally, the rate of federal prejudgment

interest  is at the discretion of the trial court, with the  goal

of fairly compensating the plaintiff.50  The date when prejudgment

interest  accrues, unlike under our own statute, is also  at  the

discretion of the court with the same aim in mind.51  Postjudgment

interest  is  specifically provided for  by  statute.   Under  28

U.S.C.   1961, postjudgment interest shall begin at the  date  of

entry of judgment and be set at a floating market rate.52

          After  considering the memoranda of  the  parties,  the

court  found  that federal law should determine the  interest  on

Greggs judgment, rather than Alaska statute.  The court concluded

          that it should calculate prejudgment interest at a variable

yearly  rate  from  the  date  of Greggs  termination  until  the

beginning  of  trial,  and  that  postjudgment  interest   should

commence  at  the  date  of  trial.   In  setting  the  rate   of

postjudgment interest, however, the court found that the rate set

by AS 09.30.070 should govern.

          The  Municipality  argues that  the  court  incorrectly

calculated   prejudgment  interest  because  under   Alaska   law

prejudgment interest accrues from the day the defendant  receives

notice of the complaint.53  But here federal law applies and  the

timing of prejudgment interest is at the courts discretion.  Even

under  our  own  statute, we have held that  when  the  plaintiff

claims  economic  damages, prejudgment interest  should  commence

upon the date of injury.54  It was within the courts discretion to

decide  that  Greggs  award of back pay and prejudgment  interest

should  begin  on April 11, 1997, the date she was constructively

discharged.

          Next,   the   Municipality  argues  that   postjudgment

interest  should have begun upon final judgment, rather  than  at

the  commencement  of trial as the superior  court  decided.   It

suggests that a final, appealable judgment is a clear demarcation

line,  rather than the arbitrary date chosen by the trial  judge.

The  court  decided that because of the facts  of  the  case  and

nature  of the damages experts testimony, that the date of  final

judgment  was  an arbitrary date, and chose the approximate  date

the  trial began instead. Since federal law governs Greggs  award

of  damages,  postjudgment interest should have  been  calculated

from  the  date  specified  in  28 U.S.C.   1961:  [postjudgment]

interest  shall be calculated from the date of the entry  of  the

judgment.   Under  the  plain terms of the  federal  statute  the

Municipality  is  correct:  the obligation  to  pay  postjudgment

interest  only  arises  after the court renders  final  judgment.

Similarly  the  rate  of  postjudgment  interest  should  be  the

floating market rate prescribed by 28 U.S.C.  1961.  We therefore

          remand for the trial court to recalculate Greggs postjudgment

interest from the date of final judgment.55

     B.   Greggs Cross-Appeal

          1.   Liquidated damages
               
          On cross-appeal, Gregg asserts by a number of arguments

based  on  policy and precedent that the court improperly  denied

her liquidated damages.56  Upon proof of a violation of the FMLA a

plaintiff  is  entitled  to  lost  wages,  actual  damages,   and

interest, plus an equal award of liquidated damages.57  The court,

in   its   discretion,  may  reduce  the  plaintiffs   award   to

compensatory  damages  alone  if  the  defendant  proves  to  the

satisfaction of the court that the act or omission which violated

[the  Act] was in good faith and that the employer had reasonable

grounds  for  believing  that the  act  or  omission  was  not  a

violation of [the Act].58

          The  trial  court  declined to award  Gregg  liquidated

damages,  finding  only that Woodwards lack of knowledge  on  the

applicability of the FMLA when he informed Theresa that her leave

without  pay request had been denied does not establish  that  he

was  acting  in  bad faith.  This finding does  not  satisfy  the

requirements  of  the Act.  The Act requires  liquidated  damages

unless  the  court  makes  express  findings  that  the  employer

violated  the  Act in good faith and that there was a  reasonable

factual  basis for the employers action; in that case, the  court

may reduce the amount.59  In the superior courts written decision

there  is no indication that the Municipality proved to the court

that it refused Greggs April leave request in good faith, or that

there  was  a  reasonable basis for the Municipality  to  do  so.

Given  the  incomplete  findings of the trial  court,  we  cannot

resolve the issue, but on remand the court shall determine if the

Municipality affirmatively established that its refusal to  grant

additional  leave  was in good faith and that reasonable  grounds

supported its decision.

          2.   Rate of postjudgment interest

          Gregg further claims that the court should have applied

the  higher state statutory prejudgment interest rate rather than

the  federal.  The main thrust of Greggs argument is  that  since

she  pursued state and common law claims in addition to her cause

of  action  under the FMLA, the higher state rate  should  apply.

She  relies  in  chief upon a Pennsylvania Superior  Court  case,

Humphries  v. Pittsburgh and Lake Erie Railroad Co.60   Humphries

presented  the  question whether the state  rule  of  prejudgment

interest  applied to an action brought in state court  under  the

Federal Employers Liability Act (FELA).61  The court first  noted

that,  albeit a federal court sitting in diversity must  look  to

local  law to determine the availability of prejudgment interest,

such is not the rule in cases arising under federal law.62  Since

FELA  neither  provides  nor prohibits an  award  of  prejudgment

interest, the court held that it was appropriate to look to local

law to fix the rate of the award.63

          On  the  other  hand  the FMLA expressly  provides  for

interest on a plaintiffs  award. As noted above, where a  federal

claim  predominates, federal law governs the compensatory measure

of  prejudgment  interest.64   The federal  rule  of  prejudgment

interest  is  to leave the setting of rates at the discretion  of

the trial court, and the court did not abuse its discretion here.

IV.  CONCLUSION

          The trial courts finding that the Municipality violated

Greggs  right to protected leave under the FMLA is AFFIRMED.   We

REMAND  for  recalculation of the interest and principal  of  her

damage  award, and for reconsideration of the issue of liquidated

damages consistent with this opinion.

_______________________________
     1     Am.  Computer Inst., Inc. v. State, 995 P.2d 647,  651
(Alaska 2000).

     2    Id.

     3     Id. (quoting Graham v. Rockman, 504 P.2d 1351, 1353-54
(Alaska 1972); Voss v. Brooks, 907 P.2d 465, 467 (Alaska 1995)).

     4     Wasserman  v. Bartholomew, 38 P.3d 1162, 1169  (Alaska
2002).

     5     See  Thorson v. Gemini, Inc., 205 F.3d 370,  377  (8th
Cir. 2000).

     6     29  U.S.C.  2601-2654.  Gregg brought her claim  under
the federal act and similar provisions of the Alaska Family Leave
Act,  AS  39.20.500-.550, and Anchorage Municipal Code 3.30.1515.
We  address  only the FMLA because the Alaska Act  and  municipal
code do not provide a remedy.  See AS 39.20.540.

     7    29 U.S.C.  2612(a)(1) provides:

          Subject  to  section 2613 of this  title,  an
          eligible  employee shall  be  entitled  to  a
          total of 12 workweeks of leave during any 12-
          month   period  for  one  or  more   of   the
          following:
          
          (A)   Because  of  the  birth  of  a  son  or
          daughter of the employee and in order to care
          for such son or daughter.  (B) Because of the
          placement  of  a  son or  daughter  with  the
          employee for adoption or foster care.  (C) In
          order  to  care  for the spouse,  or  a  son,
          daughter, or parent, of the employee, if such
          spouse,  son,  daughter,  or  parent  has   a
          serious health condition.  (D) Because  of  a
          serious  health  condition  that  makes   the
          employee  unable to perform the functions  of
          the position of such employee.
          
     8    29 U.S.C.  2615.

     9    According to 29 C.F.R.  825.114(a),

          serious   health   condition   entitling   an
          employee  to  FMLA  leave means  an  illness,
          injury  .  .  .  or  mental  condition   that
          involves:
          
          . . . .
          
               (2)   Continuing treatment by  a  health
          care  provider.  A  serious health  condition
          involving  continuing treatment by  a  health
          care provider includes any one or more of the
          following:
          
                    (i)   A period of incapacity (i.e.,
          inability  to work, attend school or  perform
          other  regular daily activities  due  to  the
          serious health condition, treatment therefor,
          or  recovery  therefrom) of more  than  three
          consecutive calendar days, and any subsequent
          treatment or period of incapacity relating to
          the same condition, that also involves:
          
                    (A)  Treatment two or more times by
          a health care provider . . . .
          
     10    29 C.F.R.  825.114(a)(2)(i).

     11    Id.

     12    See Thorson, 205 F.3d at 377.  The regulation sets out
several alternative definitions of serious health condition, that
trigger  benefits, including a chronic serious health  condition.
See  29  C.F.R.  825.114.  Gregg and Amici Northwest  Womens  Law
Center  and Alaska Network on Domestic Violence & Sexual  Assault
argue  that  the judgment in favor of Gregg could be affirmed  on
alternative  grounds because she suffered from a chronic  serious
health  condition.  Because we affirm the finding  of  the  trial
court,  it  is  unnecessary  for us to determine  whether  Greggs
condition met the regulatory definition of chronic as well.

     13    29 C.F.R.  825.114(a); Frazier v. Iowa Beef Processors,
Inc.,  200  F.3d  1190, 1195 (8th Cir. 2000) ([A]n  inability  to
perform ones job is a requisite element of a FMLA claim. . . .).

     14    Mental illness or a high level of emotional stress may
incapacitate  an employee for purposes of the FMLA.   See,  e.g.,
Stubl  v.  T.A. Sys., Inc., 984 F. Supp. 1075 (E.D.  Mich.  1997)
(finding  that  plaintiff qualified for FMLA  protection  due  to
prolonged  grief  reaction,  as  diagnosed  by  physician).   And
multiple  adverse health conditions, perhaps minor in  isolation,
may  collectively incapacitate an employee for  purposes  of  the
Act.   Price  v. City of Fort Wayne, 117 F.3d 1022, 1024-25  (7th
Cir. 1997).

     15    See, e.g., Olsen v. Ohio Edison Co., 979 F. Supp. 1159,
1166  (N.D. Ohio 1997).  But cf. Marchisheck v. San Mateo County,
199  F.3d  1068,  1074 (9th Cir. 1999) (finding  plaintiffs  sons
personal  allegations that he could not do anything for  four  or
five  days following a beating sufficient to create a dispute  of
fact on whether son was incapacitated).

     16    29 U.S.C.  2613(a).

     17     The  Municipality was aware that Gregg was  medically
released back to work when it changed her leave status from  sick
to  annual,  yet  the  court found that any reasonable  observer,
including  officers at the department who knew that Gregg  was  a
victim of domestic violence, would have seen that Gregg was under
significant  mental stress.  Under the Act, it was therefore  the
Municipalitys  responsibility to  apprise her of  her  rights  to
further  leave under the Act, and, if the Municipality  suspected
her  of malingering, to require a health care provider to certify
her  condition.   At least one circuit court  has  held  that  an
employers failure to require certification meant that there could
be  no  genuine  issue of fact as to whether  the  plaintiff  was
incapacitated.  See Thorson, 205 F.3d at 381.

     18    See Thorson, 205 F.3d at 377 (Once the fact-finder has
affirmatively  found the necessary facts, the conclusion  that  a
plaintiff  had  a  serious health condition is inescapable  as  a
matter of law.).

     19     But  cf.  Frazier,  200 F.3d at  1195  (holding  that
judgment as matter of law was appropriate against employees  FMLA
claim when employee failed to provide any medical evidence he was
incapacitated).

     20    See, e.g., Joslin v. Rockwell Intl Corp., 8 F. Supp. 2d
1158  (N.D.  Ill.  1998) (doctor who provided retroactive  excuse
never  examined plaintiff); Bond v. Abbot Labs., 7  F.  Supp.  2d
967, 976 (N.D. Ohio 1998).

     21     This is not to say that a victim of domestic violence
is automatically entitled to the protection of the FMLA.  But any
victim  of  domestic violence who meets the tests for  a  serious
health  condition,  as  Gregg  did,  certainly  has  a  right  to
statutory leave.

     22    29 C.F.R.  825.114(a)(2)(i)(A) & (B); see, e.g., Rankin
v.  Seagate  Techs., Inc., 246 F.3d 1145, 1148 (8th  Cir.  2001);
Thorson, 205 F.3d at 377; Martyszenko v. Safeway, Inc., 120  F.3d
120, 122-23 (8th Cir. 1997).

     23    Thorson, 205 F.3d at 376.

     24    29 C.F.R.  825.114(a)(2).

     25    Thorson, 205 F.3d at 378.

     26    29 C.F.R.  825.114(a)(2)(i).

     27     The  question of whether this means that Greggs  FMLA
leave would have expired since she had already been gone from her
job  more  than the allowed 12 weeks by April will  be  discussed
below.

     28    t  825.303(b).See Satterfield v. Wal-Mart S

     29    res, Inc., 135 F.3d

     30    3, 977 (5th Cir. 199

     31    Id. at  825.303(b).

     32    See Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973,
977 (5th Cir. 1998).

     33    Id. (quoting Manuel v. Westlake Polymers Corp., 66 F.3d
758, 764 (5th Cir. 1995)).

     34    Am. Computer Inst., 995 P.2d at 651.

     35    The Municipality cites Satterfield v. Wal-Mart Stores,
Inc.,  135  F.3d  973 (5th Cir. 1998), where the plaintiff  never
directly  contacted her employer and had a history of unexplained
absences; Gregg was in frequent contact with Woodward, and had an
excellent employment record until her accident.

     36    See Spangler v. Fed. Home Loan Bank of Des Moines, 278
F.3d  847, 853 (8th Cir. 2002) (holding that plaintiffs statement
that  she  was  suffering  from  depression  was  sufficient   to
establish notice under the FMLA); Tate v. Farmland Indus.,  Inc.,
268  F.3d  989,  997 (10th Cir. 2001) (noting that  employer  who
placed  employee on involuntary sick leave was clearly on  notice
that the FMLA might apply).

     37     The  Municipality cites to the United States  Supreme
Court  decision  in Ragsdale v. Wolverine World Wide,  Inc.,  535
U.S. 81 (2002).  It essentially argues that Ragsdale prevents  an
employee  who  receives more than 12 weeks  of  leave  from  ever
filing suit under the FMLA.  But Ragsdale, which came down  after
the  trial courts decision, is inapposite because it struck  down
29  C.F.R.   825.700(a), which imposed an automatic  penalty  for
failure to designate prior leave as FMLA-qualifying.  535 U.S. at
90.   That  regulation, like the Municipalitys argument  on  this
issue, was not raised or contested in the trial court.

     38    Counsel for the Municipality conceded at oral argument
that if Gregg qualified for the Acts protection, the Municipality
would have given her several more weeks of protection.

     39     See State v. Northwestern Const., Inc., 741 P.2d 235,
239 (Alaska 1987).

     40    To show constructive discharge the employee must prove
that  a  reasonable person in the employees position  would  have
felt  compelled  to resign. Charles v. Interior Hous.  Auth.,  55
P.3d  57, 60 (Alaska 2002).  The superior court found that  under
Greggs circumstances on April 11, 1997, it was reasonable for her
to resign to protect her law enforcement certification.

     41     For  example:  Gregg  endured her  husbands  threats,
control,  and holding her against her will while in Virginia  and
was incapacitated by injuries and mental stress.

     42    Alaska R. Civ. P. 52(a).

     43    City of Hydaburg v. Hydaburg Coop. Assn, 858 P.2d 1131,
1135 (Alaska 1993).

     44    See Wasserman, 38 P.3d at 1166-67.

     45    See 29 U.S.C.  2617(a)(1)(A)(ii).

     46    City & Borough of Juneau v. Commercial Union Ins. Co.,
598 P.2d 957, 959 (Alaska 1979).

     47     See,  e.g., Nunez v. Am. Seafoods, 52 P.3d  720,  722
(Alaska 2002) (finding that under the Jones Act, the state courts
must  apply the same substantive law as would be applied had  the
suit  been instituted in admiralty in a federal court) (citations
omitted); Patterson v. State, Dept of Agri., 880 P.2d 1038, 1041-
42  (Alaska  1994)  (holding that in suit  against  employer  for
breach of a collective bargaining agreement brought under federal
Labor Management Relations Act, substantive principals of federal
law must be applied).

     48    See generally Carpenters Dist. Council of New Orleans &
Vicinity  v. Dillard Dept Stores, Inc., 15 F.3d 1275,  1288  (5th
Cir.   1994)  ([F]ederal  law  governs  the  range  of  remedies,
including the allowance and rate of prejudgment interest, where a
cause of action . . . arises out of federal statute.).

     49    See, e.g., McDonnell v. Miller Oil Co., Inc., 134 F.3d
638, 640 (3rd Cir. 1998) (affirming award of prejudgment interest
on nominal award).

     50    See, e.g., Jones v. UNUM Life Ins. Co. of America, 223
F.3d  130,  139  (2d  Cir. 2000) (noting that  since  no  federal
statute  sets  a prejudgment interest rate, the rate  is  at  the
discretion of the trial court); Towerridge, Inc. v. T.A.O., Inc.,
111 F.3d 758, 764 (10th Cir. 1997) (holding that when federal law
governs  the  question  of prejudgment  interest  the  court  has
discretion  to  choose  a  rate  which  fairly  compensates   the
plaintiff); Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59,
63  (3rd  Cir.  1986)  (In federal question cases,  the  rate  of
prejudgment  interest  is  committed to  the  discretion  of  the
district court.).

     51     Guides, LTD. v. Yarmouth Group Prop. Mgmt., Inc., 295
F.3d 1065, 1078 (10th Cir. 2002) (reversing trial courts decision
that  prejudgment  interest should run from  date  determined  by
state statute, and remanding for the court to consider the timing
of  the  award of prejudgment interest that will serve to  fairly
compensate  [the plaintiff] for the deprivation of  the  monetary
value of its loss).

     52    28 U.S.C.  1961 provides in relevant part:

          (a)   Interest shall be allowed on any  money
          judgment  in  a  civil case  recovered  in  a
          district court. . . . Such interest shall  be
          calculated from the date of the entry of  the
          judgment,  at  a  rate equal  to  the  weekly
          average  1-year  constant  maturity  Treasury
          yield, as published by the Board of Governors
          of   the  Federal  Reserve  System,  for  the
          calendar  week preceding. (sic) the  date  of
          the judgment. . . .
          
          (b)   Interest shall be computed daily to the
          date of payment except as provided in section
          2516(b) of this title and section 1304(b)  of
          title 31, and shall be compounded annually.
          
     53    AS 09.30.070(b) provides in relevant part:

          . . . [P]rejudgment interest accrues from the
          day process is served on the defendant or the
          day    the    defendant   received    written
          notification that an injury has occurred  and
          that  a  claim  may  be brought  against  the
          defendant  for  that  injury,  whichever   is
          earlier. The written notification must be  of
          a  nature that would lead a prudent person to
          believe that a claim will be made against the
          person   receiving   the  notification,   for
          personal   injury,  death,   or   damage   to
          property.
          
     54    See Beaux v. Jacob, 30 P.3d 90, 100 (Alaska 2001).

     55     The  Municipality further notes  that  Greggs  expert
admitted  two  mistakes  with  respect  to  her  calculations  of
damages,  and asks that Greggs award be reduced by the amount  of
error,  $2,910.04.  We remand this issue to the  court,  so  that
upon proper motion, the final award may be adjusted in accordance
with Alaska Civil Rule 60.

     56     Because  we hold that the court failed to  adequately
support  its  decision as required by the Act, it is  unnecessary
for  us  to  decide whether or not, as Gregg urges, an  award  of
liquidated damages is necessary to make her whole due to the  tax
consequences of the judgment in her favor.

     57    29 U.S.C.  2617 provides in relevant part:

          (1)  Liability
          
          Any  employer  who violates section  2615  of
          this  title  shall be liable to any  eligible
          employee affected
          
          (A)  for damages equal to
          
          (i)   the  amount of  (I) any wages,  salary,
          employment  benefits, or  other  compensation
          denied or lost to such employee by reason  of
          the  violation; or (II) in a  case  in  which
          wages, salary, employment benefits, or  other
          compensation have not been denied or lost  to
          the  employee,  any  actual  monetary  losses
          sustained by the employee as a direct  result
          of   the  violation,  such  as  the  cost  of
          providing care, up to a sum equal to 12 weeks
          of wages or salary for the employee;
          
          (ii) the interest on the amount described  in
          clause (i) calculated at the prevailing rate;
          and
          
          (iii)      an additional amount as liquidated
          damages  equal  to  the  sum  of  the  amount
          described  in  clause (i)  and  the  interest
          described in clause (ii), except that  if  an
          employer  who  has violated section  2615  of
          this title proves to the satisfaction of  the
          court that the act or omission which violated
          section 2615 of this title was in good  faith
          and  that the employer had reasonable grounds
          for  believing that the act or  omission  was
          not  a  violation  of section  2615  of  this
          title,  such court may, in the discretion  of
          the court, reduce the amount of the liability
          to  the amount and interest determined  under
          clauses (i) and (ii), respectively; and
          
          (B)   for  such equitable relief  as  may  be
          appropriate,      including       employment,
          reinstatement, and promotion.
          
     58    Id.

     59    Id.

     60    476 A.2d 919 (Pa. Super. 1984).

     61    Id. at 921.

     62     Id. at 922.  This is the reason that Greggs citations
to  federal  precedent are unhelpful: certainly a  federal  court
sitting in diversity shall apply state law to determine an  award
of  prejudgment  interest.  But here  a  state  court  decided  a
federal question, and federal law applies.

     63    Id. at 926.

     64    See, e.g., Hardaway Constructors, Inc. v. Browning, 336
S.E.2d  579,  582 (Ga. App. 1985) ([W]here a  claim  .  .  .   is
governed  by  federal  law,  the  question  whether  pre-judgment
interest  will  be allowed is not controlled by the  law  of  the
forum state.).