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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.
