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Bias suit cautionary tale for employers

NEIH 042114_p04_SALEMHOSPITALA Massachusetts Superior Court jury handed his clients a resounding victory, but Eugene J. “Jay” Sullivan III sounds more exasperated than triumphant when he talks about the recent win.

That’s because the defense verdict in Nansamba v. North Shore Medical Center, et al. was the third time Sullivan had to prevail in the employment discrimination suit in order to end the case once and for all.

The Boston attorney says Nansamba stands as a cautionary tale for employers with respect to the expense and frustration of defending a lawsuit, even one that’s arguably thin. The case — in particular its chapter in federal court — also holds lessons for plaintiffs’ counsel, mostly in the “what not to do” category.

“It can be very difficult to explain to a client how a case like this can exist four years down the road,” Sullivan says, noting that, in the wrong hands, employment bias statutes can be abused in an attempt to leverage an employer to provide extra unemployment benefits “without any basis in the law.”

“There’s very little an employer can do except defend the case to the end,” says Sullivan, who handled the suit with his colleague Nicole E. Forbes, of Holtz & Reed. “It’s not every employer who is willing to draw a line in the sand. … And there are plaintiffs out there who know that.”

Plaintiff Janat Nansamba’s attorneys, Godfrey K. Zziwa of Waltham, Mass., and Alanna G. Cline of Brighton, Mass, did not respond to requests for comment.

Settlement not an option

Nansamba was a nurse at defendant North Shore Medical Center in Salem, Mass., from 2002 until her firing in 2010. The hospital cited performance issues, including recent complaints that Nansamba had been abusive and rude toward patients, as the basis for the termination.

Nansamba brought suit in Essex Superior Court in July 2011 alleging that the hospital and Nansamba’s supervisor had violated the Family and Medical Leave Act by discharging her in retaliation for the leave she took while she was being treated for hemorrhoids.

The plaintiff demanded $300,000 at the beginning of the case, Sullivan says, “and that number only went up.”

While Sullivan believed the settlement demands highlighted the frivolity of the case, his client dismissed the overtures on a different principle: The accusations were at odds with the core of its mission.

“It is, after all, a hospital, and it was accused of mistreating a client because she was ill,” Sullivan says.

And so the case marched on.

Federal proceedings

After the case was removed to U.S. District Court, Judge Patti B. Saris found that Nansamba neither suffered a “serious health condition” nor received “continuing treatment,” as required under the FMLA, and granted the defendants summary judgment on all but one of their claims on May 24, 2012.

The remaining tort claim against Nansamba’s supervisor was remanded back to Superior Court.

Five days later, the litigation took a strange twist: Nansamba moved for reconsideration of the summary judgment, claiming that “new evidence” showed her hemorrhoids did, in fact, meet the definition of a “serious health condition” under the FMLA.

The defendants had been fighting for Nansamba’s full medical file for months, but had received only unrestricted access to it in April, after the summary judgment motion had been filed and briefed. Nansamba’s lawyers now appeared to be arguing that they hadn’t looked at their own client’s medical file themselves and that the evidence therefore was “newly discovered” when sent directly to the defendants in April, according to rulings in the case.

But the April disclosure did not differ substantially from records that already had been sent to the defendants in February and shared with Nansamba’s lawyers. Defense counsel had attached them to an email they sent complaining that certain materials had been exempted from release. According to court documents, Nansamba’s lawyers didn’t open the attachments and, therefore, didn’t realize that the April disclosure was largely identical to the February one.

Finding that virtually all the records Nansamba was relying on in her motion for reconsideration had been in her lawyers’ possession since at least February, Saris denied the request.

That November, Nansamba moved for relief from the judgment, arguing that she met the criteria because her attorneys’ failure to open the attachments in the February email was “excusable neglect,” and the defendants’ characterization of records they already had in their possession constituted fraud.

Saris denied the motion. On appeal, Nansamba and her lawyers fared no better.

“When litigation goes awry, lawyers sometimes scramble to find a scapegoat,” Judge Bruce M. Selya wrote for the 1st U.S. Circuit Court of Appeals. “So it is here: having conspicuously failed to protect the record, the plaintiff’s lawyers attempt to shift the blame to their opposing counsel. Concluding as we do, that this diversionary tactic lacks force, we affirm the district court’s denial of the plaintiff’s motion for relief from judgment.”

Finding that Nansamba’s lawyers had been neglectful, Selya called their failure to open the email attachment containing her medical records “neglect on steroids.”

He went on to cite Federal Rule of Civil Procedure 11(b) in a not-so-subtle suggestion that the plaintiff’s counsel hadn’t made their initial allegations of FMLA violations in good faith.

“[T]he plaintiff offers no plausible rational for bringing an FMLA claim, yet not taking the initiative to obtain her complete medical record in order to prosecute that claim,” he said. “One would have expected that the lawyers would have obtained their client’s complete medical file before bringing an FMLA action … or at any rate would have used the roughly seven months that elapsed between the commencement of the action and the filing of the summary judgment opposition to procure that file.”

Selya also quickly dispensed with Nansamba’s argument that the defendants had committed fraud by claiming she hadn’t satisfied the FMLA’s definition of a “serious health condition” when some of the medical records they had received belied that argument.

“That the defendants did not scour the discovery materials for facts supporting the plaintiff’s position is not a badge of fraud but, rather, a prudent refusal to make their adversary’s case for her,” Selya wrote. “That is simply good lawyering, and we reject the plaintiff’s brash attempt to ‘transmogrify advocacy into misrepresentation.’”

Lessons

Having prevailed so resoundingly at both the federal trial and appellate levels, Sullivan says it was frustrating to have to go back to state court to defend the single remaining tortious interference claim against Nansamba’s supervisor, Ellen Bova.

“I think that the 1st Circuit’s citing to Rule 11 is kind of telling,” Sullivan says. “Lawyers are supposed to police these cases. Lawyers aren’t supposed to file these cases. Then you go up to the 1st Circuit on Saris’ decision and plaintiffs are very strongly cautioned and reprimanded about their litigation conduct, and yet … the employer finds itself defending a four-day jury trial.”

The trial concluded Feb. 27 with the action dismissed on the merits and Bova recovering her costs from Nansamba.

Boston litigator Kevin T. Peters of Arrowood Peters says the case reminds him of the Black Knight from “Monty Python and the Holy Grail,” who after losing all his limbs declares: “Tis but a scratch,” and attempts to continue fighting.

“These people are blamers, and they are the most difficult lawyers and difficult clients to litigate against because there’s always a reason why something went wrong —  [which] never has anything to do with them,” Peters says. “They have this ‘tis but a scratch’ mentality that allows them to continue litigating cases.”

The case emphasizes the need for attorneys to manage their clients’ expectations and to emphasize how long, costly and difficult such litigation can be, especially if settlement is off the table, as it was for North Shore Medical Center, says Peters, who has represented both plaintiffs and defendants in employment discrimination matters.

“You need to inoculate your client by talking about who the plaintiff is,” he adds. “If you have a plaintiff on the other side of the case who might have this sense of moral entitlement, this could be a long case. If they are unreasonable as employees, they’re likely to be unreasonable as litigants.”

The suit, and particularly the 1st Circuit decision, also holds lessons for plaintiffs’ attorneys, according to Peters.

“Take nothing for granted. If you get an email attachment, open it. It almost never flies to blame opposing counsel,” he says.

Beth R. Myers, a lawyer at the employment law firm Rodgers, Powers & Schwartz in Boston, says the 1st Circuit decision also makes clear that obtaining the full medical record is “an advisable first step” when bringing an FMLA claim.

“When the defendant moved for summary judgment, it doesn’t look like the plaintiff relied on those records and wasn’t able to prove the element that she had a serious health condition,” Myers says. “It is … an unfortunate result for the plaintiff.”

Boston employment lawyer Tara M. Swartz, agrees, particularly since the 1st Circuit’s ruling suggested Nansamba’s medical records might have contained the evidence she needed to survive summary judgment.

“You better have that evidence presented when you need to present it,” Swartz says. “You better be carefully reviewing all the documents in your case, particularly those in your client’s possession.”

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