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JNOV flipped in MGH nurse’s retaliation case

margolisjonThe Appeals Court has overturned a Superior Court ruling that set aside a $1.2 million jury verdict awarded to a nurse who claimed Massachusetts General Hospital retaliated against her for taking time off  under the Family and Medical Leave Act.

The defendants argued that Judge Linda E. Giles had correctly granted their motion for judgment not withstanding the verdict, or JNOV, because the evidence did not permit a reasonable inference of retaliation.

But the Appeals Court disagreed in an unpublished decision.

“Although circumstantial, the evidence was sufficient to permit a juror reasonably to infer that the defendants’ proffered reasons for their decision to terminate the plaintiff were a pretext,” the decision states.

While reversing Giles on the retaliation claim, the Appeals Court panel affirmed her decision to set aside $672,686 in front pay damages. The remaining $567,500 in back pay damages was reinstated.

The nine-page decision is Esler v. Sylvia-Reardon, et al., Lawyers Weekly No. 81-143-15. The full text of the ruling can be ordered by clicking here.

Grappling with ‘bad facts’

Boston’s Jonathan J. Margolis, appellate counsel for the plaintiff, described the case as straightforward.

“The question before the trial court and before the Appeals Court is whether there was evidence, from whatever source derived, from which a rational juror could have decided for the plaintiff — and there was plenty of such evidence,” said Margolis, who practices at Rodgers, Powers  & Schwartz.

For example, the plaintiff, a dialysis nurse, contended that her supervisor reacted negatively when informed that the plaintiff had broken her wrist ice skating in New York while on FMLA leave for stress. The injury resulted in her taking additional time off.

Margolis said the best example of retaliatory motive, though, was the hospital’s decision to replace the plaintiff when she needed more time to heal after exhausting the 12 weeks of FMLA leave available to her. The additional time off the plaintiff requested was shorter than the time it would take to train the new nurse, Margolis said.

“The most glaring example to me is that [the plaintiff] was not permitted to come back to work because her wrist had not fully healed by the time they agreed, but then they hire a nurse the very next week who wouldn’t be trained up until [months later]. I presented a chalk with the line, ‘They have to perform all the duties of a dialysis nurse,’ and displayed it to the court at the oral arguments,” said Margolis, who noted that such tactics, while routinely performed in front of a jury, are rare at the appellate level. “It was so glaring that my taste for the dramatic compelled me to do it.”

Maria Mancini Scott of Keches Law Group in Taunton said retaliation is hard to prove because direct evidence of it is rare. She said Esler affirms that retaliation can be proven through circumstantial evidence that allows a jury to “infer that the stated reason for termination was merely a pretextual guise for the real reason for termination: the employer’s retaliatory animus toward the employee.”

Eugene J. “Jay” Sullivan III of Holtz & Reed in Boston represented the defendants. He said his clients did all they were legally required to do: provide 12 weeks of FMLA leave.

“As a matter of law, the hospital continues to believe there not only wasn’t, but couldn’t have been, FMLA discrimination or retaliation,” Sullivan said, adding that the defendant hospital is considering filing an application for further appellate review with the Supreme Judicial Court. “As far as the FMLA is concerned, you’re supposed to be able to return at full capacity. Other laws may require you to make an accommodation, but that’s not the case here.”

Sullivan also said that the alleged “replacement nurse” was not a “one-for-one replacement,” but a highly trained nurse from another department who already had been assisting the dialysis unit part time in the plaintiff’s absence. He further disputed the plaintiff’s assertion that her supervisor exclaimed, “You’re on vacation while on FMLA leave?” when told over the phone about the out-of-town ice-skating injury.

“The nurse manager says she never made that comment or certainly never made it in a disparaging way,” Sullivan said. “She is the one who encouraged [the plaintiff] to take the leave in the first place. The reason the phone call was made was because [the plaintiff] hadn’t put in her FMLA paperwork.”

On a motion for JNOV, though, the evidence is construed in the light most favorable to plaintiffs. In addition to driving that fact home, lawyers said Esler makes clear that jury verdicts should be afforded great deference.

Margolis also noted that trial judges are handicapped when deciding JNOV motions because full trial transcripts typically are not available at the time of post-trial motions. He said that Giles based her JNOV decision on trial transcript excerpts submitted by the defendants.

“I would suggest it’s not a good idea for the court to rely on extracts from the transcripts unless they are provided by the party opposing the motion” for JNOV, he said.

Otherwise, Margolis said, judges may base their decision on evidence skewed by the moving party.

Inga S. Bernstein of Boston’s Zalkind, Duncan & Bernstein said Esler “is an affirmation that we ask juries to be our fact-finders.”

“We should sustain their findings where we can,” she said. “The lesson for all of us is that we don’t get to decide for jurors. That’s why so many cases settle — because we all recognize that.”

Framingham’s Timothy P. Van Dyck said retaliation claims, in particular, are often best settled as juries are more likely to punish employers for alleged retaliation than discrimination because there is a sense that “the cover-up” is worse than “the crime.”

“In this particular case, you have testimony that the defendant was of the view that the plaintiff went on ‘vacation’ [while on FMLA leave] and also that the plaintiff was replaced by a nurse that didn’t have the qualifications that she had,” the Bowditch & Dewey lawyer said. “The employer had some bad facts to grapple with. In those situations, if there’s an opportunity to settle under reasonable terms, the employer should seriously consider it.”

Thin ice

Plaintiff Marie Esler filed suit in 2010 alleging age and handicap discrimination and retaliation under Chapter 151B and the Family and Medical Leave Act.

She sought and was approved for FMLA leave in November 2008 after her supervisor, defendant Mary Sylvia-Reardon, urged her to take time off because she was under stress stemming from her divorce.

Esler did not return to work in December and instead asked for additional FMLA leave so that she could undergo surgery for a broken wrist she suffered while ice skating in New York. Sylvia-Reardon allowed her take leave until Feb. 6, 2009, when her 12 weeks of FMLA time would be exhausted.

When Esler asked for more time to recover from her surgery, Sylvia-Reardon agreed on the condition that she return to full duty on Feb. 16, 2009, with no restrictions.

Esler’s doctor stated that she would be capable of returning on that date, but should be restricted from lifting more than five pounds. Determining that the plaintiff could not perform her job with that restriction and while wearing a splint, the defendant hospital rejected the request.

At summary judgment, the court dismissed the Chapter 151B claims, leaving as the sole issue for trial whether the defendants retaliated against the plaintiff for taking FMLA leave.

The jury returned a verdict against both MGH and Sylvia-Reardon, awarding both front and back pay. The defendants filed a motion for JNOV, which Giles granted.

“There was an absence of direct evidence in this case;” Giles wrote, “and the circumstantial evidence surrounding Sylvia-Reardon’s actions all pointed in the opposite, salutary direction: her suggesting that the plaintiff take FMLA leave initially in November 2008 because of stress; her urging the plaintiff in December 2008 to submit her FMLA paperwork in order to keep her job secure; her inquiring as to how the plaintiff was doing during her leave; her approving the plaintiff’s additional FMLA leave until February 6, 2009; and her granting the plaintiff two extra weeks of leave to which she was not entitled under the Act.”

Mixed bag

The Appeals Court reversed the allowance of the JNOV.

“[C]onstruing the evidence in the light most favorable to the plaintiff … Sylvia-Reardon’s view that the plaintiff was  engaged in ‘vacation’ while on FMLA leave, combined with the fact that the plaintiff was replaced by a nurse who could not perform the duties of a hemodialysis nurse on her own, taken together with the evidence that the plaintiff’s five-pound weight lifting restriction would not foreclose her from operating the hemodialysis equipment, permitted the jury to conclude that the plaintiff was not terminated because of her splint and lifting restriction, but because she took FMLA leave.”

The Appeals Court panel affirmed Giles’ decision to set aside the front pay damages portion of the verdict. As an equitable remedy, the availability and amount of any front pay award is properly determined by the court, the panel found.

“This approach is followed by the majority of Federal Courts of Appeal, and there is no reason or basis upon which to depart from them or to import (as the plaintiff urges) the different approach to front pay under” G.L.c. 93A.

The panel rejected the defense’s argument that “the case proceeded to trial on theories that had been foreclosed by the earlier decision on summary judgment.”

 

CASE: Esler v. Sylvia-Reardon, et al., Lawyers Weekly No. 81-143-15

COURT: Appeals Court

ISSUE: Where a jury found that a plaintiff nurse was retaliated against for taking leave under federal law, was the trial judge correct to enter judgment notwithstanding the verdict?

DECISION: No

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