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Massachusetts Supreme Judicial Court Upholds FMLA Retaliation Verdict
Eligible employees may take unpaid leave for up to twelve weeks during a twelve-month period for “a serious health condition” that prevents the employee from performing her job functions, pursuant to the Family and Medical Leave Act (“FMLA”). 29 U.S.C. § 2612. The employee generally must be returned to the same or an equivalent position. 29 U.S.C. § 2614. The law also protects the employee from retaliation or discrimination.
The Supreme Judicial Court recently decided a case involving allegations of FMLA retaliation in Esler v. Sylvia-Reardon. The plaintiff had worked as a hemodialysis nurse at the hospital for several years. In November of 2008, the plaintiff requested FMLA leave for symptoms partly related to a blood disorder. The hospital approved the request for leave from November 14 through December 15, 2008. The plaintiff’s symptoms included fatigue and anxiety, and her doctor had recommended she engage in light exercise and pleasurable activities. She visited friends in New York during her leave and injured her wrist ice skating. Her supervisor called while she was in New York, stating that the FMLA paperwork had not been received and the plaintiff’s job was in jeopardy. The plaintiff told her supervisor that she was in New York, and the supervisor questioned her being on vacation while she was on FMLA leave. When the plaintiff told her supervisor about her injury, the supervisor said the plaintiff needed to come back the following week or she could not hold her job.
After learning she needed surgery for her injury, the plaintiff submitted another request for FMLA leave. The hospital approved the request for leave from December 8, 2008, through February 6, 2009, a total of twelve weeks from the initial leave.
The plaintiff had to wear a cast for six weeks and needed occupational therapy. She asked her supervisor if she could postpone her return for ten days, and the supervisor approved. The plaintiff’s doctor approved her returning to work on February 16 with a restriction not to lift more than five pounds with her left hand. The plaintiff’s supervisor told her that she could not accommodate this restriction or the plaintiff’s need to wear a splint. The plaintiff told the supervisor she only needed the brace intermittently and was capable of driving and doing her household chores and that things could be different by the time she was scheduled to return. The supervisor told the plaintiff to cancel an occupational health assessment that was required by the hospital for an employee to return to work and never again asked about the plaintiff’s progress or when the restrictions would be lifted. The hospital moved the plaintiff to inactive status because it said it could not accommodate the restriction.
The supervisor had hired a part-time employee in December. On February 9, before the leave expired, the supervisor told her staff that the part-time employee would be replacing the plaintiff. That employee’s training would not be completed until April, after the plaintiff’s restrictions would be lifted.
The plaintiff filed suit against the hospital and her supervisor. The jury found in favor of the plaintiff on her claim that her termination was retaliation for her exercise of her right to FMLA leave and awarded her both back pay and front pay. The defendant filed a motion for judgment notwithstanding the verdict and, in the alternative, a new trial. The trial judge allowed the judgment notwithstanding the verdict, and held that the front pay issue should not have been submitted to the jury and that there was insufficient evidence for the front pay award. The Appeals Court reversed the entry of judgment for the defendants and affirmed the front pay decision. The case then went to the Supreme Judicial Court.
Because this was a retaliation claim, the employer’s intent was a significant element. The court noted that it was a close question, but found that the evidence was sufficient to support the jury’s implicit finding that the employer had retaliated against the plaintiff for using her FMLA leave. The jury could have determined that the plaintiff’s condition was improving and that there was no meaningful restriction on her ability to do her job. She was experienced in the position and the injury involved her non-dominant hand. Though the plaintiff was progressing well, the defendants hired a replacement before the official end of her leave, despite the new nurse’s training lasting beyond the date when the plaintiff could be expected to be able to perform her full duties unrestricted. The court found that the hiring of a replacement, the negative statements made by the supervisor, and the closeness in time of the plaintiff’s leave and her termination were sufficient to support the jury’s conclusion that the plaintiff’s termination was retaliation for use of FMLA leave.
The Supreme Judicial Court remanded the case so the trial court could address the defendant’s motion for a new trial, which had not been addressed at all in the trial court’s original ruling.
The Supreme Judicial Court also found that front pay under the FMLA is an equitable remedy that may be decided by the judge. The judge had decided that the plaintiff had not shown that she was entitled to front pay, and the Supreme Judicial Court found that determination was supported by the record and affirmed.
In light of the above, the Supreme Judicial Court affirmed in part, reversed in part, and remanded the case on the issue of a new trial.
Eligible employees are entitled to exercise their right to FMLA leave, and employers cannot retaliate against them for doing so. As this case shows, a determination of retaliation can be based on circumstantial evidence.