Esler v. Sylvia-Reardon , 473 Mass. 775 ( 2016 )

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SJC-11899
MARIE ESLER vs. MARY SYLVIA-REARDON & another.1
Suffolk. November 3, 2015. - March 9, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Family & Medical Leave Act. Employment, Retaliation,
Termination.
Civil action commenced in the Superior Court Department on
March 11, 2010.
The case was tried before Linda E. Giles, J., and a motion
for judgment notwithstanding the verdict or, in the alternative,
for a new trial was heard by her.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Herbert L. Holtz (Thomas A. Reed with him) for the
defendants.
Jonathan J. Margolis for the plaintiff.
Meghan Hayes Slack & Chetan Tiwari, for Massachusetts
Employment Lawyers Association, amicus curiae, submitted a
brief.
1
Massachusetts General Hospital. Partners Healthcare
System, Inc., was dismissed as a defendant during trial and is
not party to the appeal.
2
BOTSFORD, J. Only one count of the plaintiff Marie Esler's
eight-count complaint against her former employer, defendant
Massachusetts General Hospital (hospital), and her former
supervisor, defendant Mary Sylvia-Reardon, survived for purposes
of trial.2 In answer to special questions, a jury returned a
verdict in Esler's favor on her claim that the hospital
terminated her employment in retaliation for her exercise of the
right to take medical leave under the Federal Family and Medical
Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. (2012), and awarded
her damages consisting of $567,500 in back pay and $672,686 in
front pay. The defendants thereafter filed a motion for
judgment notwithstanding the verdict (judgment n.o.v.)3 or, in
the alternative, for a new trial. See Mass. R. Civ. P. 50 (b),
as amended, 428 Mass. 1402 (1998). The trial judge allowed the
motion for judgment n.o.v. but took no specific action on the
defendants' alternative request for a new trial.4 The judge also
2
Various contract, tort, and discrimination claims were
dismissed prior to the close of discovery. Summary judgment
entered for the defendants with respect to other claims. The
disposition of these claims is not at issue on appeal.
3
The defendants moved for a directed verdict at the close
of Esler's evidence, and they renewed the motion at the close of
all the evidence. See Shafir v. Steele, 431 Mass. 365, 371
(2000). The trial judge reserved ruling on the motions and
submitted the case to the jury.
4
The judge's memorandum of decision and order states that
she allowed the motion for judgment notwithstanding the verdict
3
ruled that the issue of front pay should not have been submitted
to the jury, and she concluded that there was insufficient
evidence to provide for such an award in this case. In a
decision issued pursuant to its rule 1:28, the Appeals Court
reversed the entry of judgment for the defendants on the motion
for judgment n.o.v. and affirmed the judge's order with respect
to front pay. The case is now before us for further appellate
review. Like the Appeals Court, we reverse the allowance of the
defendants' motion for judgment n.o.v. and affirm the judge's
order with respect to front pay. We remand the case to the
Superior Court for consideration of the defendants' alternative
request for a new trial.
Factual background. We summarize facts the jury could have
found at trial, viewing the evidence in the light most favorable
to Esler and disregarding evidence favorable to the defendants.
See O'Brien v. Pearson, 449 Mass. 377, 383 (2007). Esler began
working as an acute hemodialysis nurse in 1997. In March, 2003,
she was hired by the hospital as a registered nurse in the
hemodialysis unit. Sylvia-Reardon was the nursing director of
the unit, and became Esler's supervisor in approximately 2006.
(judgment n.o.v.) or, in the alternative, for a new trial. The
judge did not, however, "specify the grounds for granting or
denying the motion for [a] new trial." Mass. R. Civ. P. 50 (c),
365 Mass. 814 (1974). We interpret the language used by the
judge in her order as a reference to the title of the
defendants' motion, rather than a substantive ruling on their
alternative request for a new trial.
4
Six nurses on the unit, including Sylvia-Reardon, have
taken FMLA leave. In November, 2008, Esler made a first request
for FMLA leave on account of symptoms, relating in part to a
blood disorder, including anxiety and fatigue. The hospital
approved Esler's request on or about December 2, 2008; the
approved leave period was from November 14 to December 15, 2008.
During this leave, and consistent with advice provided by her
doctor, who suggested that she engage in pleasurable activities
and light exercise to relieve stress, Esler went to New York
City to visit friends. While ice skating in New York, Esler
fell and injured her wrist. On December 5, Esler received a
"curt" or "rather nasty" telephone call from Sylvia-Reardon
stating that Esler's FMLA paperwork had not been received and
that "your job is in jeopardy and I don't need to hold your
position."5 Esler informed Sylvia-Reardon that she was in New
York and could not follow up that day with her physician, to
which Sylvia-Reardon responded, "What? You're on FMLA leave and
you're in New York [C]ity vacationing?" When Esler told Sylvia-
Reardon about her wrist injury, Sylvia-Reardon responded, "Well,
Marie, I need to have you back here next week or I can't hold
your job."
Soon after this conversation, Esler learned that she had
5
In fact, Esler had submitted the necessary paperwork for
her leave to the hospital.
5
fractured her wrist and injured a tendon in her thumb, and that
she needed hand surgery. She submitted a second request for
FMLA leave, which the hospital approved beginning on December 8,
2008, and ending on February 6, 2009, twelve weeks from the
start of her initial FMLA leave on November 14, 2008.
Ultimately, Esler was required to wear a cast for six
weeks, and she began occupational therapy on January 14, 2009,
after the cast was removed. On January 21, she asked Sylvia-
Reardon for permission to delay her return to work by ten days,
to February 16, and Sylvia-Reardon agreed. A letter signed by
Esler's physician and dated January 27 approved her return to
work on February 16, with a single restriction: "No lifting
with left hand more than 5 lbs." Esler communicated the lifting
restriction to the hospital, and she also informed the
defendants that she needed to wear a splint or brace. Sylvia-
Reardon responded that she could not accommodate the lifting
restriction or the need to wear a splint. By that point in
time, late January, 2009, Esler only needed to wear the brace
intermittently, was able to drive, and could do her household
chores. In a telephone conversation on or about January 28,
Esler explained these facts to Sylvia-Reardon and added that she
was "making good progress so things could be very different by"
the date of Esler's return to work, February 16, more than two
weeks away. Although the dialysis machines and beds were on
6
wheels, and none of the equipment that a hemodialysis nurse
would have to lift weighs more than five pounds, in the
telephone conversation, Sylvia-Reardon instructed Esler to
cancel an occupational health assessment, which was part of the
hospital's return to work process. Sylvia-Reardon never
inquired further about Esler's medical progress or when the
restrictions would be lifted. At that point, the hospital
transitioned Esler to inactive status because, it stated, her
job could not be performed with those restrictions.
In December, 2008, Sylvia-Reardon had hired an additional
registered nurse, Darlene Crisileo, to work in the hemodialysis
unit on a part-time basis. Sylvia-Reardon did so to cover
certain staffing shortfalls, including Esler's absence on FMLA
leave, and she was required to seek permission to exceed the
hemodialysis unit's budget in order to make the hire. On
February 5, 2009, one day before Esler's twelve-week FMLA leave
formally expired and eleven days before the end of extended
absence she had approved, Sylvia-Reardon informed all the staff
of the unit that Crisileo would replace Esler. Although
Crisileo was being trained to perform dialysis at that time, she
would not complete her training or be able to perform fully the
job of a hemodialysis nurse until at least April 6, 2009 -- a
date that was after Esler would have been able to perform all
her nursing duties without any medical restrictions.
7
Discussion. 1. Family Medical Leave Act. The FMLA
entitles eligible employees to take up to twelve weeks of leave
during a twelve-month period because "of a serious health
condition that makes the employee unable to perform the
functions of the position of such employee." 29 U.S.C.
§ 2612(a)(1)(D) (2012). On return from that leave, the FMLA
requires (with exceptions not applicable here) that the employee
be restored to the same or an equivalent position. 29 U.S.C.
§ 2614(a) (2012). See 29 C.F.R. § 825.214 (2015). See also
Henry v. United Bank, 686 F.3d 50, 55 (1st Cir. 2012). To
safeguard these substantive entitlements, the FMLA contains
proscriptive provisions to protect employees from retaliation or
discrimination based on the exercise of the FMLA's substantive
rights.6 See 29 U.S.C. § 2615(a)(1) (2012) ("unlawful for any
employer to interfere with, restrain, or deny the exercise of
. . . any right provided" by act). See also 29 U.S.C.
§ 2615(a)(2) (2012); 29 C.F.R. § 825.220 (2015). An employer
may not, for example, "use the taking of FMLA leave as a
6
Although the Family Medical Leave Act (FMLA), 29 U.S.C.
§§ 2610 et seq. (2012), does not use the word "retaliation," it
is well established that a cause of action for retaliation under
the FMLA exists. See Henry v. United Bank, 686 F.3d 50, 55 (1st
Cir. 2012); Hodgens v. General Dynamics Corp., 144 F.3d 151, 160
n.4 (1st Cir. 1998). See also Gordon v. United States Capitol
Police, 778 F.3d 158, 161 (D.C. Cir. 2015) (recognizing
retaliation claim under 29 U.S.C. § 2615[a][1] [2012]); Colburn
v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st
Cir. 2005) (observing that 29 C.F.R. § 825.220[c] "unambiguously
interprets [29 U.S.C] § 2615 as prohibiting retaliation").
8
negative factor in employment actions, such as hiring,
promotions or disciplinary actions." 29 C.F.R. § 825.220(c).
See Henry, supra.
The FMLA's proscriptive provisions are at issue here. It
is undisputed that Esler was unable to perform completely the
work of a hemodialysis nurse when her twelve weeks of FMLA leave
were exhausted on February 6, 2009 -- or by February 16, 2009,
the date she was scheduled to return to work at the hospital.
Esler does not contend that she had a substantive FMLA right to
reinstatement or that her substantive FMLA rights otherwise were
violated. See 29 C.F.R. § 825.216(c) (2015) (employee not
entitled to reinstatement "[i]f the employee is unable to
perform an essential function of the position because of . . .
the continuation of a serious health condition"). Instead, her
claim is that the FMLA's proscriptive provisions were abridged
because the hospital's decision not to reinstate her to her
former position after the FMLA leave period was exhausted was
made in retaliation for her initial exercise of rights under the
FMLA. See Colburn v. Parker Hannifin/Nichols Portland Div., 429
F.3d 325, 327 (1st Cir. 2005) ("claim for retaliatory discharge
from employment is not extinguished by a finding that the
plaintiff was unable to return to work at the expiration of his
[twelve]-week period of FMLA leave").
2. Judgment n.o.v. In reviewing the allowance of a motion
9
for judgment n.o.v., we view the evidence in the light most
favorable to the plaintiff, and we "consider whether anywhere in
the evidence, from whatever source derived, any combination of
circumstances could be found from which a reasonable inference
could be drawn in favor of the nonmoving party" (quotation and
citation omitted). Phelan v. May Dep't Stores Co., 443 Mass.
52, 55 (2004). The jury heard and considered all the evidence
under instructions that neither party questions, and the jury
found in favor of Esler. See Cahaly v. Benistar Prop. Exch.
Trust Co., 451 Mass. 343, 350, cert. denied, 555 U.S. 1047
(2008) (importance of jury to our justice system renders
nullifying jury verdict "a matter for the utmost judicial
circumspection").
The employer's intent or motivation is pivotal to a claim
for violation of the FMLA's proscriptive provisions because,
although "an employee may not be penalized for exercising her
rights under the statute, an employee may nevertheless be
discharged, not promoted, or denied benefits for independent
reasons during or after her taking of FMLA leave." Carrero-
Ojeda v. Autoridad de Energia Eléctrica, 755 F.3d 711, 719 (1st
Cir. 2014).7 A panel of the Appeals Court reviewed the trial
7
Where, as in this case, there is no direct evidence of a
motive or intent to retaliate against the plaintiff for taking
FMLA leave, courts have applied the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-806 (1973).
10
record and determined that the evidence, although
circumstantial, was sufficient to support the jury's implicit
determination that the reason advanced by the defendants for
Esler's termination -- an inability to perform fully the duties
of a hemodialysis nurse -- was a pretext for retaliation on
account of Esler's having taken FMLA leave. We have carefully
reviewed the record as well, and although the issue is close, we
reach the same conclusion as the Appeals Court. In particular,
a jury could have found that Esler's medical condition continued
to improve after her cast was removed in January, 2009, that by
the end of January she had a good range of motion in her left
wrist and was strengthening it by using a five-pound weight,
that no component of the hemodialysis equipment handled by the
hemodialysis nurses weighed more than five pounds, and that
there was no meaningful restriction on Esler's ability to
perform the essential aspects of a hemodialysis nurse's job.
See Colburn, 429 F.3d at 335-336. Under the McDonnell Douglas
framework, as applicable here, Esler, as the employee, must
establish a prima facie case of retaliation, the hospital as
employer must then articulate a legitimate, nondiscriminatory
reason for Esler's termination, and then Esler must prove that
the hospital's stated reason for terminating her was a pretext
for retaliating against her on account of her taking FMLA leave.
See Hodgens, 144 F.3d at 160-161. By the time of trial, the
trial judge, ruling on the defendants' motion for summary
judgment, had determined that Esler satisfied her burden to
establish a prima facie case of discriminatory retaliation, that
the hospital had articulated a legitimate reason for firing
Esler, and that the question of retaliatory motive should be
tried. Neither party has challenged the judge's summary
judgment ruling on appeal, and we accept it.
11
Moreover, Esler was an experienced hemodialysis nurse, and the
injury was not to her dominant hand. Finally, although Esler
may not have been able to perform fully all of the functions of
her nursing job immediately on the day she was to return to work
from FMLA leave, she was progressing well in her recovery;
nonetheless, the defendants hired a nurse to fill her position
before her FMLA leave had officially ended -- a nurse whose
training would not be complete until April, 2009, and who would
not have been able to perform all the duties of a hemodialysis
nurse for a longer period of time than was likely to be true of
Esler. This evidence, combined with Sylvia-Reardon's negative
comments about Esler using her FMLA leave as a "vacation"8 and
the close relationship in time between Esler's FMLA leave and
the date of her termination, was sufficient, even if far from
compelling, to permit a jury to conclude that Esler was
terminated in retaliation for having taken that leave, and not
because of a splint and a lifting restriction.
3. Motion for a new trial. In addition to moving for
judgment n.o.v., the defendants requested, in the alternative, a
new trial. Although the judge's order allowed the consolidated
"motion" and her memorandum of decision explains her reason for
8
The evidence includes an electronic mail exchange between
Sylvia-Reardon and another employee of the hospital in which the
two share their disapproving views of Esler's having gone on a
trip to New York City while on FMLA leave.
12
entering judgment n.o.v., as mentioned, the judge did not make
specific reference to the alternative request for a new trial,
nor did she "specify the grounds for granting or denying the
motion," as Mass. R. Civ. P. 50 (c), 365 Mass. 814 (1974),
requires. On the record before us, we cannot know whether the
judge intended to conditionally allow (or, perhaps, deny) the
motion for a new trial, or even to reserve ruling on it. In the
exercise of our discretion, we therefore remand the case to the
Superior Court for further proceedings concerning the
defendants' alternative request for a new trial. Cf. Turnpike
Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 128 (1992)
(reversing conditional grant of new trial where inadequate
reasons were specified).
4. Front pay. We briefly address the question whether an
award of front pay under the FMLA should be determined by the
court rather than a jury. See 29 U.S.C. § 2617(a)(1)(B) (2012)
("Any employer who violates [§] 2615 of this title shall be
liable to any eligible employee affected . . . for such
equitable relief as may be appropriate, including employment,
reinstatement, and promotion"). Although the Federal courts may
not be entirely unanimous on the topic, compare Traxler v.
Multnomah County, 596 F.3d 1007, 1014 (9th Cir. 2010)
(availability and amount of front pay award reserved for court),
with Arban v. West Publ. Corp., 345 F.3d 390, 406 (6th Cir.
13
2003) (jury determines amount of front pay award), several of
the Federal Circuit Courts of Appeals treat front pay as an
equitable remedy appropriate for a judge's determination. See
Traxler, supra at 1011, and cases cited. See also Johnson v.
Spencer Press of Me., Inc., 364 F.3d 368, 379-380 (1st Cir.
2004). Because "under the FMLA, front pay is an equitable
remedy," Traxler, supra at 1011, and because we see no reason to
reach a result different from that which many of the Federal
Courts do on a point of Federal law, we conclude that front pay
under the FMLA is appropriate for a judge's consideration.
The trial judge in the present case submitted the issue of
front pay to the jury, but in deciding the defendants' motion
for judgment n.o.v. or a new trial, the judge ruled that the
issue was one for her to decide. Considering the merits
herself, the judge concluded that Esler had not established the
requisite factual basis to warrant an award of front pay. The
judge's decision on this issue is supported by the record and
will be affirmed.
Conclusion. Applying the standard that considers whether,
"anywhere in the evidence, from whatever source derived, any
combination of circumstances could be found from which a
reasonable inference could be made in favor of the [nonmovant]"
(citation omitted), O'Brien, 449 Mass. at 383, we conclude that
the evidence at trial was sufficient to support the jury's
14
verdict that the defendants retaliated against Esler because she
exercised her right to twelve weeks of FMLA leave. We further
conclude that the issue of front pay in an FMLA retaliation case
should be reserved for the judge, and that the judge did not
abuse her discretion or otherwise err in determining that the
evidence at trial was insufficient to support an award of front
pay. Accordingly, we reverse in part and affirm in part the
entry of judgment for the defendants on the defendants' motion
for judgment n.o.v. We remand the case to the Superior Court
for further proceedings with respect to the defendants'
alternative request for a new trial.
So ordered.