Esler v. Sylvia-Reardon

• Decision Date: 09 March 2016
• Docket Number: SJC–11899.
• Citation: 473 Mass. 775,46 N.E.3d 534
• Parties: Marie ESLER v. Mary SYLVIA–REARDON & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

473 Mass. 775

46 N.E.3d 534

Marie ESLER

v.Mary SYLVIA–REARDON & another.¹

SJC–11899.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Nov. 3, 2015.

Decided March 9, 2016.

Herbert L. Holtz (Thomas A. Reed with him), Boston, for the defendants.

Jonathan J. Margolis, Boston, for the plaintiff.

Meghan Hayes Slack & Chetan Tiwari, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

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 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, 868 N.E.2d 118 (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.

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 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 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.

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 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 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, 819 N.E.2d 550 (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, 885 N.E.2d 800, ...