Wald v. Benedictine Living Cmtys., Inc.

• Decision Date: 25 January 2019
• Docket Number: No. 20180048,20180048
• Parties: Debra WALD, Plaintiff and Appellant v. BENEDICTINE LIVING COMMUNITIES, INC., d/b/a St. Rose Care Center, Defendant and Appellee
• Court: North Dakota Supreme Court

921 N.W.2d 905

Debra WALD, Plaintiff and Appellant

v.BENEDICTINE LIVING COMMUNITIES, INC., d/b/a St. Rose Care Center, Defendant and Appellee

No. 20180048

Supreme Court of North Dakota.

Filed January 25, 2019

Sean T. Foss, Fargo, ND, for plaintiff and appellant.

Matthew D. Kirschenmann (argued) and Michelle M. Donarski (on brief), Fargo, ND, for defendant and appellee.

McEvers, Justice.

[¶1] Debra Wald appeals from a judgment entered after the district court denied her motion for judgment as a matter of law or for a new trial on her claim that Benedictine Living Communities, Inc., doing business as St. Rose Care Center, terminated her employment in violation of the Family and Medical Leave Act (FMLA). Wald argues she was entitled to judgment as a matter of law or to a new trial on her claim that St. Rose terminated her in violation of the FMLA. We reverse the judgment and remand for a new trial on damages for Wald's FMLA termination claim.

I

[¶2] On March 3, 2011, Wald sustained a work injury when she slipped and fell during the course of her employment as a cook and kitchen aid at St. Rose, a long-term care center in LaMoure. Wald received medical treatment for her injury and Workforce Safety & Insurance ultimately awarded her partial temporary disability benefits from 2011 to 2015. Prior to her injury, Wald worked more than thirty hours per week at St. Rose, and she earned $10.25 per hour plus benefits, including health insurance, paid sick leave, and paid time off.

[¶3] At the time of her injury, Wald was an employee eligible for FMLA coverage and St. Rose was an employer covered by the FMLA, which authorizes employees to take up to twelve weeks of unpaid sick leave in specific situations, including when the employee has a serious health condition rendering the employee unable to perform essential job functions. See 29 U.S.C. § 2601 et seq. Under the FMLA, St. Rose was required to provide Wald with notice of her FMLA rights after her March 3, 2011 injury, and she was entitled to fifteen calendar days to obtain medical certification of a serious health condition to invoke her right to unpaid sick leave. See 29 C.F.R. § 825.300 et seq.

[¶4] On May 11, 2011, St. Rose notified Wald about her FMLA rights, and on May 20, 2011, St. Rose terminated her employment without providing her with an opportunity to effectuate those rights. According to Wald's treating physician, Dr. John Beauclair, she was released to return to regular work duties without restriction on July 13, 2011. Wald testified she would have been willing to go back to work with some accommodations to see what she could do. According to Wald, she attended some computer training courses through Workforce Safety & Insurance after her termination from St. Rose, but she stopped taking classes after she was denied further workers' compensation benefits. Wald testified she had not had a job after her employment was terminated by St. Rose because she decided to be a stay-at-home wife and mother.

[¶5] Wald sued St. Rose, alleging interference with her FMLA rights, termination in violation of the FMLA, intentional infliction of emotional distress, negligent infliction of emotional distress, discrimination in violation of the Americans with Disabilities Act, and discrimination in violation of the North Dakota Human Rights Act. The discrimination claims were dismissed before trial. At trial, the district court granted Wald's motion for judgment as a matter of law on her FMLA interference claim and awarded her damages on that claim. Both parties moved for judgment as a matter of law on Wald's claim that St. Rose terminated her in violation of the FMLA. In her motion, Wald argued she was entitled to judgment as a matter of law on the issue of liability because she was terminated before effectuating her FMLA rights. Wald asserted that "the only issue that should be going to this jury on the FMLA claim is [her] damages for termination in violation of the FMLA." The district court denied both parties' motions for judgment as a matter of law on Wald's FMLA termination claim.

[¶6] A jury thereafter returned a special verdict finding that Wald failed to prove St. Rose was liable for negligent or intentional infliction of emotional distress. The jury also found that St. Rose terminated Wald in violation of the FMLA and that she would have earned $118,610.76 in wages, salary, employment benefits and other compensation in her employment with St. Rose from the date of her termination through the date of the verdict. The jury further found that Wald failed to mitigate her damages by not seeking out or taking advantage of employment opportunities reasonably available to her after her termination and that she would have earned $118,610.76 if she had sought out or taken advantage of reasonably available employment opportunities. The special verdict effectively awarded Wald no damages for her FMLA termination claim.

[¶7] Wald renewed her motion for judgment as a matter of law on her FMLA termination claim and, alternatively, moved for a new trial on damages. She argued St. Rose had the burden to show she failed to mitigate her damages and St. Rose failed to present any evidence of substantially equivalent employment opportunities reasonably available to her in the LaMoure area from the date of her termination to the date of trial to support the jury's finding that she could have earned $118,610.76 if she had sought out or taken advantage of those opportunities. St. Rose asked the court to summarily deny Wald's renewed motion for judgment as a matter of law to the extent she sought review of an issue about mitigation of damages that was not raised in her pre-verdict motion. St. Rose also argued Wald was not entitled to judgment as a matter of law or a new trial because she made no effort to seek any employment opportunities after her termination and the evidence therefore supported the jury's determination that Wald failed to mitigate her damages. St. Rose did not assert it provided any evidence of substantial equivalent jobs reasonably available to Wald; rather, St. Rose claimed the jury was entitled to rely on its common knowledge and experience to conclude there were jobs available to Wald in the LaMoure area.

[¶8] At a hearing on Wald's post-verdict motions, the district court recognized Wald's pre-verdict motion for judgment as a matter of law raised issues about liability and not damages. The court thereafter orally denied Wald's motion for judgment as a matter of law on her FMLA termination claim but granted her a new trial on that claim, explaining:

The evidence that was submitted on mitigation is, and there was testimony by Ms. Wald, and I don't think anyone disputes that, said she did not look for any other work, that she did do some work around the family farm. There was evidence submitted that she was on temporary partial disability. I remember you used that word in your argument ... so I assume that was what the evidence had it been fully addressed would have shown. So we don't know what the temporary or the partial extent was. There was the picture that was introduced of Ms. Wald carrying a case of soda or something out of a grocery store.... Which was submitted to the jury. They could make a determination what she's capable of. I suppose they could make an inference based on that. So there would be sufficient evidence, I believe, to get to the jury on whether or not she reasonably mitigated. The issue that I see ... is I cannot see how they could have made that specific of a finding on the ... specific amount ... the plaintiff could have earned if she had sought out or taken advantage of employment opportunities that were reasonably available to her after May 11, 2011? Answer: $118,610.76.

I simply do not believe the evidence was sufficient. There was no evidence presented to them. You could say there were jobs available, but without some evidence as to were they minimum wage, no benefits, was there minimum wage with benefits, what were the extent of the benefits, the jury could not draw that conclusion based on the evidence they had.

....

I just don't see how I can avoid that ... if I accepted that the jury could use their commonsense and experience to say there were jobs available in LaMoure County, and there was testimony that she didn't look for any, there's testimony from Dr. Beauclair that she could have went back to work in July of 2011, there was contravening, although general evidence, that she was on some partial disability from some period of time after July of 2011 that resulted in a WSI benefit so the jury could infer that she could have went to work possibly somewhere, but there was no evidence in front of them that would allow them to make any specific inference of what could have been garnered through alternative employment.

I'm going to find that the motion for judgment under Rule 50 by the plaintiff is denied. But the motion for new trial in the alternative motion must be granted under Rule 59 b(6).

[¶9] On reconsideration, the district court subsequently denied Wald's motion for a new trial:

Since the hearing, I have reviewed the transcript of the plaintiff's trial testimony, and reconsidered the parties' arguments on whether there was sufficient evidence for the jury to find that had the plaintiff made reasonable efforts to find other work, she could have earned as much as the amount the jury found she would have earned at St. Rose Care Center. Upon reconsideration, I conclude there was sufficient evidence to support the jury's finding. Specifically:

A. The evidence showed, and the plaintiff argued, that Ms. Wald was capable of returning to full employment as a cook at St. Rose as of mid-July 2011.

B. The plaintiff testified that she did not try to secure alternative employment in the 5 1/2 years between the time she was able to return to full employment and the trial in December 2016.

C. The jury is entitled to consider its common knowledge and experience of local

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