NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12651

     RICHARD A. DaPRATO    vs. MASSACHUSETTS WATER RESOURCES
                             AUTHORITY.



            Suffolk.      April 4, 2019. - June 5, 2019.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                            Kafker, JJ.


Massachusetts Water Resources Authority. Family & Medical Leave
     Act. Public Employment, Termination. Employment,
     Termination, Retaliation. Damages, Emotional distress,
     Liquidated damages, Punitive. Practice, Civil,
     Instructions to jury.



     Civil action commenced in the Superior Court Department on
December 7, 2015.

     The case was tried before Douglas H. Wilkins, J., and a
motion for judgment notwithstanding the verdict or for a new
trial or remittitur was considered by him.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Meghan L. McNamara (Carolyn Francisco Murphy also present)
for the defendant.
     Robert S. Mantell (David E. Belfort also present) for the
plaintiff.
     John Pagliaro & Martin J. Newhouse, for New England Legal
Foundation & another, amici curiae, submitted a brief.
                                                                     2


     Patricia A. Washienko & Rebecca G. Pontikes, for
Massachusetts Employment Lawyers Association, amicus curiae,
submitted a brief.


    KAFKER, J.   The Massachusetts Water Resources Authority

(MWRA) terminated the employment of an information technology

manager, Richard DaPrato, after he went on vacation to Mexico

during the final two weeks of a paid medical leave to recover

from foot surgery.     A jury found the MWRA liable for a

retaliatory termination in violation of the Family and Medical

Leave Act of 1993 (FMLA), 29 U.S.C. § 2615 (2012), the Americans

with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12112 (2012),

and G. L. c. 151B, § 4 (16).     The jury awarded $19,777 in "back

pay" damages for DaPrato's lost wages and made an "advisory"

award of $300,000 in "front pay" for the future loss of his

pension benefits.    The jury also awarded $200,000 in damages for

emotional distress and $715,385 in punitive damages, and the

trial judge awarded $208,443 in liquidated damages and $605,690

in attorney's fees and costs.     The MWRA moved for judgment

notwithstanding the verdict or, in the alternative, for a new

trial or remittitur.    The judge entered remittitur as to the

jury's front pay award, reducing it to $188,666, but otherwise

denied the MWRA's motion, resulting in total damages of

$1,332,271, not including attorney's fees, costs, and interest.
                                                                   3


     The MWRA now appeals from the judgment below.    It argues

that a new trial is warranted because the trial judge, over its

objections, gave erroneous jury instructions about the causation

standard for an FMLA retaliation claim and failed to give a

requested jury instruction concerning the so-called "honest

belief" defense to this claim.   The MWRA also contends that the

judge erred when, over its objection, he instructed the jury

that they could not consider that DaPrato "took or requested

[FMLA] leave or spent time recuperating in a particular location

or in a particular manner" when determining whether the MWRA had

an "independent reason" for terminating DaPrato.     Finally, it

contends that the damages award should be vacated or modified

with respect to the liquidated, punitive, and emotional distress

damages, and recalculated with respect to the front pay award.

We affirm the judgment and damages awards.1




     1 We acknowledge the amicus brief submitted in support of
the Massachusetts Water Resources Authority (MWRA) by the New
England Legal Foundation and the Associated Industries of
Massachusetts, as well as the amicus brief submitted in support
of Richard DaPrato by the Massachusetts Employment Lawyers
Association.
                                                                    4


     1.   Facts and procedural history.   We recite the following

facts that could have been found by the jury, reserving certain

facts for later discussion.2

     The MWRA is a public authority created by statute to

provide water and sewer services to municipalities in

Massachusetts.   DaPrato began working for the MWRA in 2004 as a

manager in the information technology department.   He received

positive performance evaluations, had no disciplinary history,

and "loved [his] job."   DaPrato planned to retire from the MWRA

in 2019, at age sixty-six.

     In January 2015, DaPrato informed the MWRA's human

resources department (HR) by e-mail that he was postponing a


     2 When reviewing the denial of a motion for judgment
notwithstanding the verdict pursuant to Mass. R. Civ. P. 50 (b),
as amended, 428 Mass. 1402 (1998), 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" and
view the evidence "in the light most favorable to the plaintiff,
without weighing the credibility of the witnesses or otherwise
considering the weight of the evidence" (quotation and citations
omitted). Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290,
295 n.11 (2016).

     We review the denial of a motion for a new trial for an
abuse of discretion, bearing in mind that a judge should
exercise his or her discretion "only when the verdict is so
greatly against the weight of the evidence as to induce in his
[or her] mind the strong belief that it was not due to a careful
consideration of the evidence, but that it was the product of
bias, misapprehension or prejudice" (quotation and citation
omitted). Turnpike Motors, Inc. v. Newbury Group, Inc., 413
Mass. 119, 127 (1992).
                                                                    5


previously scheduled knee surgery and instead planning to take

FMLA leave to have an operation to remove a nerve tumor from his

right foot.3   Based on information received from his surgeon,

DaPrato "estimate[d]" that he would need to take FMLA leave

during his recovery period from February 6, 2015, the date of

the surgery, through March 26, 2015.   DaPrato explained that his

surgeon had told him that the "recovery is [three to four] weeks

but [he] will not be able to drive as [he] will have a boot on

[his] foot for an additional [three to four] weeks."

     DaPrato subsequently provided HR with an FMLA application

form completed by his surgeon.   In the form, the surgeon twice

explained that DaPrato would be able to "transition" to putting

weight on his right foot after four weeks.4   Additionally, the


     3 The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.
§ 2612(a)(1)(D) (2012), requires a covered employer to provide
up to twelve weeks of unpaid leave in a twelve-month period for
an eligible employee whose "serious health condition . . . makes
the employee unable to perform the functions of the position of
such employee." See 29 U.S.C. § 2611(2), (4) (definitions of
"eligible employee" and covered "employer"). The MWRA's "Family
and Medical Leave Policy and Procedures" (FMLA leave policy)
permitted an eligible employee to apply for "up to [twelve]
weeks of unpaid FMLA Leave during any [twelve]-month period for
. . . a serious health condition that prevents the employee from
performing job requirements."

     4 In a section of the form describing "job functions the
employee is unable to perform," the surgeon wrote that DaPrato
"must be nonweightbearing to right foot for [four] weeks then
transition to WB [weightbearing]." In a section of the form
describing "other relevant medical facts . . . related to the
condition for which the employee seeks leave," the surgeon wrote
                                                                     6


surgeon estimated that DaPrato would be "[four to six] weeks out

of work from date of surgery."   The director of HR relied on

this form when approving DaPrato's FMLA leave.

     DaPrato had his foot surgery as scheduled on February 6,

2015.    A few weeks later, DaPrato informed the MWRA that he

hoped to return to work early because he could "walk around a

little without crutches" and was planning to drive his car using

his left foot.   DaPrato had returned to work early from previous

FMLA leaves, and his hope was to do so in this case as well in

order to avoid exhausting his allotted vacation leave time.     HR

told DaPrato, however, that he could not return to work without

written permission from his doctor.     On February 24, 2015,

DaPrato informed the MWRA that he would not be able to obtain

his doctor's permission to return to work until his next

doctor's appointment on March 26.     In another FMLA leave

application dated March 11 and signed by his surgeon, DaPrato

requested an additional week of FMLA leave from March 20 until

March 26.5




that DaPrato "must keep his foot elevated + be NWB
[nonweightbearing] for [four] weeks --> then transition to WB."

     5 Similar to the earlier FMLA application, this application
stated that "patient must be nonweightbearing right foot for
[four] weeks then transition to weight bearing." It also stated
"patient . . . must . . . be non weight bearing for [four] weeks
transitioning to weight bearing full over next [three] weeks."
                                                                   7


     When DaPrato determined that he would exhaust his sick time

and vacation time before returning to work due to his inability

to return until March 26, he spoke to a manager in HR about the

MWRA's "salary continuation" policy for providing pay to

managers who took FMLA leave due to a "serious health condition

that prevents the employee from performing job requirements."6

DaPrato had first learned about this program in December 2014

from the same manager, when he had informed her about his

multiple upcoming surgeries.   The MWRA did not have a written

application for salary continuation separate from the FMLA leave

request forms, and HR applied the same "criteria" as it applied

to an FMLA leave request when deciding whether to grant salary



This form anticipated DaPrato's return to work as March 27,
2015.

     6 Tracking the language of the relevant provision of the
FMLA statute, see note 3, supra, the MWRA's FMLA leave policy
stated that an "employee may apply for salary continuation
during FMLA Leave only when the employee has a serious health
condition that prevents the employee from performing job
requirements." In turn, the salary continuation policy
provided: "[a]n employee who is seriously ill or disabled, and
who has no remaining sick leave balance may apply for salary
continuation benefits for a maximum of [twenty-six] weeks.
Documentation from a licenced [sic] physician stating that the
employee is unable to perform his/her normal duties is
required." The policy provided that an employee on salary
continuation would receive one hundred percent of his or her pay
for the first eight weeks of salary continuation and a
descending percentage of his or her salary thereafter. While
not reflected in the written policy, the MWRA typically required
employees to exhaust vacation time before receiving salary
continuation benefits.
                                                                      8


continuation.    Based on the FMLA forms completed by DaPrato's

physician, the HR manager concluded that DaPrato should be

approved to receive "salary continuation" benefits while on his

FMLA leave.

     On March 12, 2015, DaPrato went on a vacation to a beach in

Mexico with his family.     DaPrato took this trip every year, had

booked the travel arrangements well in advance, and had informed

his supervisor of the dates of his vacation on multiple

occasions.7    Due to his medical condition, DaPrato stated that he

limited the typical activities in which he engaged while on

vacation.     As discussed infra, at trial the MWRA introduced

photographs of DaPrato standing on a boat fishing, including one

photograph where he was proudly holding a large fish he had

caught, to impeach DaPrato's testimony about his lack of

mobility.     The MWRA did not, however, possess these photographs

when it reached its termination decision.     DaPrato returned from

his vacation on March 24, 2015.

     Several days later, DaPrato contacted HR because his

paycheck did not reflect the salary continuation benefits that

HR had told him he would receive should he exhaust his allocated

sick days and vacation days while on unpaid FMLA leave.    HR


     7 There was also evidence that DaPrato had told the MWRA's
director of administration, one of the managers who interviewed
him prior to his termination, that he was going on vacation to
Mexico.
                                                                   9


subsequently provided DaPrato with $4,614.22 in salary

continuation payments for March 16 through March 27, 2015.

DaPrato went back to work on March 30, 2015.    On April 6, he

sent an e-mail message to HR asking for a copy of the salary

continuation policy so that he would not encounter any

"surprises" about using the policy when he took FMLA leave for

his previously postponed knee surgery.   The director of HR

forwarded DaPrato's e-mail message to an HR manager with the

message "is he serious," to which the manager responded "OMG."

Despite this and other requests, HR did not provide DaPrato with

a copy of the salary continuation policy prior to his

termination.

     The same day as this e-mail exchange, HR learned that

DaPrato had gone on vacation to Mexico while on FMLA leave and

receiving salary continuation.   The director of HR immediately

launched an investigation into the propriety of DaPrato's leave

because she did not think an employee "who's seriously ill or

disabled would be able to be on a vacation."8   In the course of


     8 The HR director testified as follows when examined by
DaPrato's counsel:

     Q.: "And is it your testimony that that fact made you
     suspicious?"

     A.:   "Which -- which fact?"

     Q.:   "That he had been on vacation?"
                                                                  10


her investigation, the HR director obtained video recordings

that depicted DaPrato walking, driving, and lifting luggage out

of his car at an MWRA facility on his FMLA leave.9   The director

of HR believed that these actions were inconsistent with the

medical conditions for which DaPrato had been granted FMLA leave

and received salary continuation benefits.




     A.:   "Made me suspicious of what?"

     Q.: "That [DaPrato] was doing something he shouldn't have
     done?"

     A.: "I didn't think he should be away on vacation, yes,
     when he received salary continuation benefits."

     Q.: "Right. But didn't you testify earlier that there is
     no inconsistency in the salary continuation policy between
     taking salary continuation and recovering in a vacation
     location?"

     A.: "Well, I didn't mean that I thought someone should be
     on vacation. What I meant was if they needed -- you know,
     if someone has a sister in Florida and they were unable to
     work and they needed to be taken care of, there was nothing
     in the policy preventing them to go to Florida to recover,
     but I wasn't talking about being on vacation. I wouldn't
     think somebody who's seriously ill or disabled would be able
     to be on a vacation" (emphasis added).

     9 The director of HR reviewed three video recordings
obtained from an MWRA facility near Boston's Logan Airport where
employees were permitted to park their cars before taking
flights. On March 9, 2015, DaPrato entered the building on
crutches when at the facility to attend a meeting. On March 12,
he parked his car and transferred luggage to a taxicab. On
March 24, he put the luggage back in his car and drove away. In
the latter two recordings DaPrato was not using crutches, but he
testified that he had a medical boot on his right foot.
                                                                     11


    On April 8, the HR director presented the video recordings

to the MWRA's senior management.    The MWRA management instructed

the HR director and the MWRA director of administration to

interview DaPrato immediately.     The interviewers claimed that

DaPrato initially denied parking at the MWRA facility or going

on vacation.   DaPrato contested this account of the meeting:       he

stated that he attempted to explain that he had tried to come

back to work before his vacation and that his conduct on the

video recordings was consistent with the limitations described

in his FMLA leave forms.   The interviewers concluded that

DaPrato had "misrepresent[ed] . . . his disability" for which he

had obtained FMLA leave and salary continuation.     At the end of

the interview, the HR director gave DaPrato a letter she had

brought to the interview that stated that DaPrato was now

"prohibited from entering MWRA property" because he had "been

placed on administrative leave with pay effective immediately

pending further review of a matter that has come to our

attention."

    Immediately following the interview, the interviewers

reported to MWRA senior management that DaPrato had lied to them

about the medical conditions for which he had received FMLA

leave and salary continuation benefits and recommended his

termination.   The interviewers did not, however, present the

FMLA leave forms to senior management.     Based on the report of
                                                                   12


the interview, the MWRA's executive director, with the agreement

of the other senior managers, decided to terminate DaPrato's

employment.   The director of HR sent DaPrato a termination

letter, dated April 9, 2015, informing him that his employment

was terminated as of April 10, 2015, due to "[his]

misrepresentation that [he was] unable to work from March 12 to

March 27, 2015, [his] receipt of extended salary continuation

pay to which [he was] not entitled, and [his] failure to be

truthful during [his] interview concerning these matters on

April 8, 2015."   DaPrato elected to begin receiving his pension,

shortly after his termination from the MWRA.

    In December 2015, DaPrato brought suit against the MWRA

under the FMLA, ADA, and G. L. c. 151B, § 4.   Following trial,

the jury returned a verdict in DaPrato's favor on his claims

that the MWRA had terminated him in retaliation for his taking

FMLA leave for his foot surgery and expressing his intention to

take FMLA leave in the future.   The judge and jury awarded

damages as described supra.   The judge denied the MWRA's motion

for a judgment notwithstanding the verdict or, in the

alternative, for a new trial or remittitur, with the exception

of remittitur of the front pay damages.   The MWRA appealed from

the final judgment, and we transferred the case here on our own

motion.
                                                                     13


     2.   Discussion.    a.   FMLA statute and regulations.   The

central claim in this case is that the MWRA terminated DaPrato

in retaliation for his exercise of his right to take medical

leave under the FMLA.     In relevant part, the FMLA provides that

"[i]t shall be unlawful for any employer to interfere with,

restrain, or deny the exercise of or the attempt to exercise,

any right provided under this subchapter."     29 U.S.C.

§ 2615(a)(1).     It also states that an employer may not

"discharge or in any other manner discriminate against any

individual for opposing any practice made unlawful by this

subchapter."    29 U.S.C. § 2615(a)(2).    A regulation issued by

the Department of Labor further states that the FMLA's

"prohibition against interference prohibits an employer from

discriminating or retaliating against an employee . . . for

having exercised or attempted to exercise FMLA rights," and in

particular explains that "employers cannot 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).10

     To succeed on a claim of retaliation under the FMLA, an

employee "must show that (1) he availed himself of a protected


     10The text of 29 U.S.C. § 2615 only refers to
"discrimination" and "interference," not retaliation. The
Federal Courts of Appeals differ as to whether a cause of action
                                                                   14


right under the FMLA; (2) he was adversely affected by an

employment decision; [and] (3) there is a causal connection

between the employee's protected activity and the employer's

adverse employment action."   Hodgens v. General Dynamics Corp.,

144 F.3d 151, 161 (1st Cir. 1998).

     b.   Errors in jury instructions.   The MWRA claims that it

is entitled to a new trial based on several erroneous jury

instructions regarding DaPrato's FMLA retaliation claim.11    We

consider the MWRA's claimed errors in turn.



for retaliatory termination under the FMLA is created by 29
U.S.C. § 2615(a)(2), the antidiscrimination provision; or 29
U.S.C. § 2615(a)(1), the anti-interference provision, and 29
C.F.R. § 825.220(c), a regulation interpreting the interference
provision; or both provisions and the accompanying regulation.
See Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d
325, 331 & n.2 (1st Cir. 2005) (discussing different approaches
and ambiguity of statutory source of this prohibition, while
recognizing that 29 C.F.R. § 825.220[c] "unambiguously
interprets § 2615 as prohibiting retaliation"); W. Bush & J.M.
Paul, The Family and Medical Leave Act, at 10-4 to 10-5 (2d ed.
2017) (discussing different approaches). Regardless of its
origin, a retaliatory FMLA discharge claim is "universally
recognized" by the Federal courts. Pagán-Colón v. Walgreens of
San Patricio, Inc., 697 F.3d 1, 8 (1st Cir. 2012), citing
Colburn, supra at 331 n.2.

     11In a civil trial, a "judge should instruct the jury
fairly, clearly, adequately, and correctly concerning principles
that ought to guide and control their action" (citation
omitted). Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 547
(2014). The judge is "not bound to instruct in the exact
language of the [parties'] requests," however, and "has wide
latitude in framing the language to be used in jury instructions
as long as the instructions adequately explain the applicable
law" (quotation and citations omitted). Kelly v. Foxboro Realty
Assocs., LLC, 454 Mass. 306, 316 (2009). Moreover, an
                                                                  15


     i.   Jury instruction on standard of causation.   The MWRA

argues that it is entitled to a new trial because the judge gave

an erroneous instruction to the jury concerning the causation

standard required for DaPrato to prove that his termination was

unlawful retaliation for his taking of FMLA leave.12   In relevant

part, the judge instructed the jury:

     "Mr. DaPrato must prove that more likely than not he
     was fired because of retaliation. He must show that


"appellate court considers the adequacy of the instructions as a
whole, not by fragments." Selmark Assocs. Inc., supra.

     12The MWRA also argues that the judge's erroneous
instructions regarding DaPrato's FMLA retaliation claim
"tainted" his claims of disability and handicap retaliation
under the Americans with Disabilities Act of 1990 (ADA) and
G. L. c. 151B, § 4 (16). After reciting the elements of a
retaliation claim under the ADA and G. L. c. 151B § 4 (16), the
judge instructed the jury that the "same principles apply to
[these] claim[s] as to the FMLA retaliation claim" and
"refer[red] [the jury] back to [his] discussion of those
principles." The MWRA does not otherwise claim error with
respect to the ADA or G. L. c. 151B instructions or claims.

     As we discern no reversible error in the FMLA instructions,
we do not address the ADA or G. L. c. 151B claims separately.
We note that the standards for succeeding on a claim of
disability or handicap retaliation under the ADA or G. L.
c. 151B, § 4 (16), are similar to that used for finding
retaliation under the FMLA. See Mole v. University of Mass.,
442 Mass. 582, 591–592 (2004) (retaliation claim under G. L.
c. 151B requires employee to "show that he engaged in protected
conduct, that he suffered some adverse action, and that a causal
connection existed" [quotation, citation, and footnote
omitted]); Kelley v. Correctional Med. Servs., Inc., 707 F.3d
108, 115 (1st Cir. 2013) (retaliation claim under ADA requires
plaintiff to show that "[1] she engaged in protected conduct;
[2] she experienced an adverse employment action; and [3] there
was a causal connection between the protected conduct and the
adverse employment action" [citation omitted]).
                                                                 16


     his taking leave or requesting leave in the future was
     a negative factor in the MWRA's decision to terminate
     his employment in the sense that, but for the
     retaliation, MWRA would not have terminated him. If
     so, then he has met his burden of proof on the fourth
     element. . . . If Mr. DaPrato proves that more likely
     than not MWRA fired him because of retaliation for
     taking or requesting FMLA leave, then you'll answer
     yes to question 1 [on the jury verdict form], which
     asks . . . Did MWRA retaliate against Mr. DaPrato by
     terminating his employment because he took or
     requested FMLA leave?" (Emphasis added.)

According to the MWRA, this instruction was erroneous because it

led to "impermissible confusion" whether DaPrato's taking of

FMLA leave need only be a "negative factor" considered by the

MWRA in its termination decision or rather whether retaliation

against DaPrato for taking leave was the "but for" cause of his

termination.13   Because the MWRA objected to this instruction at


     13The judge explained that he included the phrase "negative
factor" based on our statement in Esler v. Sylvia-Reardon, 473
Mass. 775 (2016), that an "employer may not . . . 'use the
taking of FMLA leave as a negative factor in employment actions,
such as hiring, promotions or disciplinary actions.'" Id. at
779, quoting 29 C.F.R. § 825.220(c). The trial judge's cautious
approach to the negative factor regulation in his causation
instruction was appropriate. Our statement in Esler simply made
reference to the Department of Labor regulation; it did not
provide guidance on how the regulation should be considered in a
causation instruction in a retaliation case. The language of
the regulation itself is also more general and may simply be
designed to provide guidance for how employers, particularly
human resources professionals, should treat requests for FMLA
leave in the employment context. We could also find nothing in
the regulatory history that is informative in this regard.

     The case law reflects significant uncertainty in the
Federal courts, and no definitive guidance from the United
States Supreme Court, about how to consider the Department of
                                                                   17


trial, we review for prejudicial error.   See Blackstone v.

Cashman, 448 Mass. 255, 270 (2007) ("An error in jury

instructions is not grounds for setting aside a verdict unless

the error was prejudicial -- that is, unless the result might

have differed absent the error").   We conclude that the judge's

instruction did not result in error, let alone prejudicial

error.




Labor regulation in the context of a causation instruction in an
FMLA retaliation case. See, e.g., Gourdeau v. Newton, 238 F.
Supp. 3d 179, 194 (D. Mass. 2017) (discussing conflicting
interpretations, even within United States Court of Appeals for
First Circuit). The Federal courts appear divided between those
adopting a "but for" causation test, regardless of the
regulation, and those considering the regulation indicative of a
less demanding, motivating factor test. Compare, e.g., id.
(regulation not entitled to judicial deference) with Woods v.
START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 169 (2d
Cir. 2017) (regulation entitled to judicial deference), and Egan
v. Delaware River Port Auth., 851 F.3d 263, 273-274 (3d Cir.
2017) (same). See Colburn, 429 F.3d at 335 n.8 ("Whether a
mixed-motive analysis is available at all in an FMLA case for
retaliation is an open question, and we do not resolve it here.
The issue has been adverted to but avoided by three circuits").

     In its brief, the amicus New England Legal Foundation
presents extensive analysis contending that the "but for"
standard is appropriate absent express language to the contrary
in the statute itself and that the Supreme Court will adopt the
"but for" test when the issue is presented to it. We are,
however, neither prepared nor required to predict how the
Supreme Court will decide this issue in order to decide the
instant case because we conclude that the MWRA received the
benefit of the higher standard and any uncertainty in this
regard. See ACE Prop. & Cas. Ins. Co. v. Commissioner of
Revenue, 437 Mass. 241, 248 n.8 (2002) ("we are not bound by the
decisions of Federal courts [other than the United States
Supreme Court] on matters of Federal law").
                                                                    18


     The emphasized portion of this instruction contains the

MWRA's requested "but for" standard.     The judge carefully

explained the sense in which he was using negative factor in the

instruction.   It was not just a motivating factor but instead a

"but for" factor, in the sense that "but for the retaliation

[for the exercise of a protected FMLA right], MWRA would not

have terminated [DaPrato]."14   Further clarifying this sense, the

judge then reviewed the verdict form with the jury, explaining

that the jurors must consider whether "MWRA fired [DaPrato]

because of retaliation" and whether it was "more likely than not

MWRA fired [DaPrato] because of retaliation for taking or

requesting FMLA leave" (emphasis added).     This language applies

a "but for" standard of causation.     See University of Tex. Sw.

Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013), citing Safeco




     14The "but for" portion of the instruction as given is
similar to the MWRA's requested instruction that "Mr. DaPrato
must show that a desire to retaliate against him was a
determinative, or but for, factor in the decision by MWRA to
terminate him. In other words, the plaintiff must prove that,
had he not taken the FMLA leave, MWRA would not have terminated
his employment." By contrast, the judge omitted the plaintiff's
proposed instruction that the jury need only find that the
MWRA's retaliatory motive for DaPrato's taking leave may have
been a "motivating factor" among "other, legitimate
considerations."
                                                                   19


Ins. Co. of Am. v. Burr, 551 U.S. 47, 63–64 & n.14 (2007)

("because of" calls for "but for" causation standard).15

     In short, in considering the "adequacy of the instructions

as a whole," Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525,

547 (2014), and respecting the "wide latitude" the judge has in

framing the instructions (citation omitted), Kelly v. Foxboro

Realty Assocs., LLC, 454 Mass. 306, 316 (2009), we discern no

error in the judge's causation instruction.

     ii.   Jury instruction on location or manner of FMLA leave.

The MWRA also claims that the judge erred when, over its

objection, he instructed the jury:   "[DaPrato] has not met this

element [i.e., causation] if the MWRA discharged him for

independent reasons, even if that discharge occurred during or

after his taking of FMLA leave.   A reason counts as an

independent reason only if it does not include as a negative

factor the fact that Mr. DaPrato took or requested leave or

spent time recuperating in a particular location or in a

particular manner" (emphasis added).   The MWRA argues that it

suffered prejudice because the instruction prohibited the jury

from considering DaPrato's conduct while on vacation during his




     15Moreover, the jury were instructed to award compensatory
damages that DaPrato lost "as a result of MWRA's retaliation" or
"as a result of the MWRA's unlawful conduct." The award of
damages thus required the jury to find retaliation to be the
"but for" cause of DaPrato's termination.
                                                                     20


FMLA leave, even though the jury may have thought this conduct

was inconsistent with DaPrato's claimed medical condition and

thus supplied an independent reason for the MWRA to terminate

DaPrato.

    Although the wording of this instruction was problematic,

we conclude that, in the circumstances of this case, it was not

an abuse of discretion and, in any event, was not prejudicial.

The purpose of the instruction was curative:     the judge

determined that it was necessary to minimize the "substantial

risk that the jury would be swayed by the MWRA's attempts,

through photographs and evidence, to play to the jury's possible

resentment . . . against DaPrato for taking a vacation while on

FMLA leave."   Specifically, the judge had admitted photographs

of DaPrato on a fishing trip while on vacation in Mexico during

his FMLA leave.   The photographs, which depicted DaPrato

standing on a boat and holding up a large fish, were admitted,

over DaPrato's objection to their potential prejudice, so that

during cross-examination the MWRA could impeach DaPrato's

account of his mobility while on vacation.     The judge concluded,

however, that the "jury saw the picture a bit excessively at a

time when counsel could have taken it down. . . .     I think that

was inappropriate."   The judge thus decided that he needed to

give an instruction explaining to the jury that "you can't

penalize someone for going on vacation during FMLA leave."
                                                                    21


       The judge's instruction was intended to comply with Esler

v. Sylvia-Reardon, 473 Mass. 775, 781 (2016).    Indeed, in Esler

we emphasized that an employer may not treat the mere fact that

an employee went on vacation while on FMLA leave, standing on

its own, as grounds for an adverse employment action.    In that

case, however, there was no inconsistency between the employee's

medical reasons for taking the leave (an anxiety diagnosis) and

her conduct on leave (ice skating in New York City).    Id. at

777.   We clarify today that an employer may validly consider an

employee's conduct on vacation -- or, for that matter, anywhere

-- that is inconsistent with his or her claimed reasons for

medical leave, when the employer has such information at the

time the employer is evaluating whether leave has been properly

or improperly used.

       Here, DaPrato took FMLA leave to allow his foot to recover

fully from surgery.    Such recovery could take place in a warm

climate as well as in a New England winter.    That being said,

vacationing while on FMLA leave may take either permissible or

impermissible forms.    An employee recovering from a leg injury

may sit with his or her leg raised by the sea shore while fully

complying with FMLA leave requirements but may not climb Machu
                                                                  22


Picchu without abusing the FMLA process.16   Careful consideration

of the reasons for the medical leave and the activities

undertaken, including the timeline for rehabilitation and

recovery, are required to determine whether FMLA leave has been

abused.   DaPrato's fishing trip raises legitimate questions:    he

is seen in photographs standing on a boat and holding a large

fish that apparently he had reeled in himself at a time when he

was supposedly still recovering from foot surgery.   In this

context, the instruction given by the judge is problematic, as

the photograph is some evidence that DaPrato may not have been

entirely truthful about the state of his injury and his need for

FMLA leave.




     16For informative fact patterns, compare, e.g., Esler, 473
Mass. at 777, 781 (no inconsistency between FMLA leave and ice
skating where employee out on FMLA leave for anxiety disorder
was encouraged by her doctor to engage in pleasurable activities
and light exercise to relieve stress), with Sharrow vs. S.C.
Johnson & Son, Inc., U.S. Dist. Ct., No. 17-CV-11138 (E.D. Mich.
Apr. 12, 2018) (employer had nonretaliatory reason to terminate
employee who played nine holes of golf and went "tubing" in
river while on FMLA leave for foot injury), and Lineberry vs.
Richards, U.S. Dist. Ct., No. 11-13752 (E.D. Mich. Feb. 5, 2013)
(granting summary judgment to employer where investigation
revealed that employee on FMLA leave for leg and back pain lied
about need for wheelchair while taking preplanned vacation to
Mexico and employer reasonably relied on other particularized
facts, such as Facebook posts of employee riding in motorboat).
See Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261,
1266, 1275 (11th Cir. 2017) (overturning grant of summary
judgment for employer where evidence was "murky at best" that
employee who took FMLA leave for shoulder surgery abused leave
by going to amusement park and Caribbean island).
                                                                    23


    Nevertheless, as discussed supra, the MWRA did not have the

photographs when reaching its termination decision.   It did not

know what he did on vacation in Mexico, just that he had gone on

vacation to Mexico.   The HR director's statement that she

considered all vacations while on FMLA leave impermissible was

incorrect as a matter of law.   Importantly, DaPrato's FMLA leave

certification forms described his foot as steadily recovering,

with weight bearing allowed, indicating he could engage in some

activity on vacation.   Finally, the judge was concerned that the

MWRA was appealing to the jury's emotions by highlighting the

fishing pictures and not removing them from the jury's sight.

We cannot say, in these circumstances, that it was an abuse of

discretion to give this instruction to address unfairness that

he concluded may have arisen during trial.   See Renzi v.

Paredes, 452 Mass. 38, 53 (2008) ("well within [judge's]

discretion to provide [a] curative instruction" to ensure jury

correctly base their decision on evidence); Carrel v. National

Cord & Braid Corp., 447 Mass. 431, 447 (2006) (proper for judge

to issue instruction that jury consider certain evidence without

being influenced by "sympathy, emotion, [or] sentiment").

    Finally, even if such an instruction were an error, we

conclude that it was not prejudicial.   The jury awarded punitive

damages because it found the MWRA's conduct outrageous.      This

award demonstrates that the jury credited DaPrato's account of
                                                                   24


his medical condition, and what he said to the MWRA officials

when they confronted him, and not the MWRA's.   Given the jury's

unequivocal decision in favor of DaPrato, we conclude that any

error in this instruction would not have prejudiced the MWRA.

     iii.   Absence of jury instruction on MWRA's "honest belief"

for its termination decision.   The MWRA further argues that it

was error for the judge, over its objection, to decline to

provide a jury instruction that "an employer is not liable under

the FMLA if it discharges an employee based upon an honest

belief that the employee had misused FMLA leave, even if that

belief is mistaken."17   The judge declined to give an "honest

belief" instruction on the ground that "an honest but




     17The judge did instruct the jury that they might find the
MWRA's termination decision to have been "poor or erroneous" but
not an FMLA violation so long as it was not a "pretext for
illegal retaliation." He further instructed the jury that the
"employer's stated legitimate reason must be reasonably
articulated and non-retaliatory but does not have to be a reason
that you, the jury, would personally agree with. An employer is
entitled to make his own policy and business judgments." As
discussed, the jury determined that DaPrato's termination was
"because of retaliation for taking or requesting FMLA leave."
They thus rejected the possibility that the termination decision
was made for valid business reasons rather than serving as a
"pretext for illegal retaliation." As the judge explained in
denying the MWRA's motion for a new trial, the "MWRA argued this
case as an 'either-or' question. Either MWRA fired DaPrato for
the reasons it stated, or the reasons were a pretext for
discrimination and retaliation. Neither party suggests a third
possibility."
                                                                  25


unconsciously biased decision would [not] absolve the employer

from liability."

     Based on the text of the FMLA, we conclude that the judge

properly declined to give an honest belief instruction.18   The

statute provides a specific, narrowly defined role for good

faith, honest but mistaken beliefs that have a reasonable basis.

The FMLA provides that a judge "shall" award

     "an additional amount as liquidated damages equal to
     the sum of the amount described in clause (i) [("any
     wages, salary, employment benefits, or other
     compensation denied or lost to such employee by reason
     of the violation")]; and the interest described in
     clause (ii), except that if an employer who has

     18Whether or not an employer's "honest belief" is a viable
defense to an FMLA claim is another issue that has divided the
Federal courts. Some reject it as a defense, at least in the
context of an FMLA inference claim; others accept it, at least
in the retaliation context. Compare, e.g., Tillman v. Ohio Bell
Tel. Co., 545 Fed. Appx. 340, 352 (6th Cir. 2013) ("An employer
who honestly, but mistakenly believes that the employee abused
his FMLA leave can still be said to have interfered with,
restrained, and/or denied the exercise of those rights"), and
Colburn, 429 F.3d at 332 ("employer motive plays no role in a
claim for substantive denial of benefits"), with Capps v.
Mondelez Global, LLC, 847 F.3d 144, 152 (3d Cir. 2017) (where
employer alleged to have retaliated against employee "provides
evidence that the reason for the adverse employment action taken
by the employer was an honest belief that the employee was
misusing FMLA leave, that is a legitimate, nondiscriminatory
justification for the discharge"). Some of those recognizing
the defense appear to still require employers to show that their
employment decisions were reasonable under the circumstances.
See, e.g., Marshall v. The Rawlings Co., 854 F.3d 368, 380 (6th
Cir. 2017) ("The honest-belief rule applies where the employer
reasonably relied on the particularized facts that were before
it at the time the decision was made" [quotation and citation
omitted]). Regardless, the United States Supreme Court has not
addressed the issue, and, as we have explained, we are not bound
by decisions of other Federal courts. See note 13, supra.
                                                                  26


     violated [§] 2615 of this title proves to the
     satisfaction of the court that the act or omission
     which violated [§] 2615 of this title was in good
     faith and that the employer had reasonable grounds for
     believing that the act or omission was not a violation
     of [§] 2615 of this title, such court may, in the
     discretion of the court, reduce the amount of the
     liability to the amount and interest determined under
     clauses (i) and (ii), respectively" (emphasis added).

29 U.S.C. § 2617(a)(1)(A)(iii).   See Pagán-Colón v. Walgreens of

San Patricio, Inc., 697 F.3d 1, 14 (1st Cir. 2012) ("To

establish good faith under the FMLA, a defendant must show that

it honestly intended to ascertain the dictates of the FMLA and

to act in conformance with it" [quotation and citation

omitted]).   The award of multiple damages, unless the employer

demonstrates good faith or lack of knowledge that its conduct

violated the FMLA, demonstrates that good faith or honest belief

is "pertinent only to the question of [the amount of] damages

under the FMLA, not to liability."   Bachelder v. America W.

Airlines, Inc., 259 F.3d 1112, 1130 (9th Cir. 2001).19    It would

not make sense to require an employer to prove that its

challenged employment decision was done in "good faith" to avoid

mandatory payment of liquidated damages if in fact such a

showing would defeat liability entirely.   See Bellalta v. Zoning


     19The parties agreed that, in the event of the jury finding
the MWRA liable for an FMLA violation, they would obtain a "good
faith ruling" with respect to liquidated damages by filing
postverdict motions. As discussed infra, the judge concluded
that the MWRA had made its termination decision in good faith,
but that it lacked reasonable grounds for that decision.
                                                                   27


Bd. of Appeals of Brookline, 481 Mass. 372, 378 (2019)

(statutory interpretation must be reasonable and avoid absurd

results).   We thus conclude that the MWRA's requested "honest

belief" instruction was not a correct statement of law.

    c.   Damages awards.   The MWRA challenges the awards of

liquidated and punitive damages and damages for emotional

distress.   We find no error in these damages awards and affirm.

    i.   Liquidated damages.   The MWRA argues that the judge's

award of liquidated damages should be vacated because the MWRA

honestly believed that DaPrato misused his FMLA leave and had

reasonable grounds for this belief.   As the statute expressly

provides, the FMLA requires a judge to award liquidated damages

in an amount equivalent to front pay and back pay damages,

unless an employer proves that its violation was done both in

"good faith" and on "reasonable grounds," in which case the

award is within the judge's discretion.   29 U.S.C.

§ 2617(a)(1)(A)(iii).   See Pagán-Colón, 697 F.3d at 12 ("an

employer must prove both 'good faith' and 'reasonable grounds'

to escape liquidated damages, and the decision of whether to

award liquidated damages is left to the court").

    Here, the judge concluded that he was obligated to award

liquidated damages based on his findings that, although the MWRA

"honestly believed it was complying with the FMLA" when it

terminated DaPrato, it lacked objectively reasonable grounds for
                                                                    28


that belief.   The judge found that the MWRA's investigation was

objectively unreasonable because it ignored DaPrato's FMLA

application and medical records and was grounded in "shock,

outrage and offense" at the possibility of further FMLA leave

rather than "reasonable discovery and evaluation of the facts."

The judge observed that his finding that the MWRA had acted in

good faith differed from the jury's finding that it had not done

so.

      Based on his findings, the judge awarded liquidated damages

in the statutorily specified amount.     We will affirm a judge's

findings of fact unless they are clearly erroneous.     Klairmont

v. Gainsboro Restaurant, Inc., 465 Mass. 165, 183 (2013),

quoting Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402

(1996) ("Findings of fact shall not be set aside unless clearly

erroneous . . .").   Because the findings on which the judge

based his award were not clear error, we affirm the award of

liquidated damages in its entirety.

      ii.   Punitive damages.   The MWRA argues that the jury's

award of punitive damages should be vacated or remitted because

its conduct was neither outrageous nor egregious.     Punitive

damages may be awarded "for conduct that is outrageous, because

of the defendant's evil motive or his reckless indifference to

the rights of others" (citation omitted).     Haddad v. Wal-Mart

Stores, Inc. (No. 1), 455 Mass. 91, 107 (2009).     A jury award of
                                                                     29


punitive damages will be sustained if it could "reasonably have

[been] arrived at . . . from any . . . evidence . . . presented"

(citation omitted), id. at 107, and is not so "grossly

excessive" as to violate constitutional standards of due

process, Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 412-413

(2013), quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562

(1996).

    We affirm the award of punitive damages.      The jury

reasonably could have found the manner in which the MWRA treated

a long-time employee with no prior history of misconduct to be

egregious or recklessly indifferent.     The jury could have found

that the MWRA was recklessly indifferent because DaPrato's

conduct was not inconsistent with the recovery time frame

described in the FMLA application.     Also, the MWRA's HR director

never presented this information to senior management when

recommending termination.   She also seemed unaware that an

employee could be on vacation and still be eligible for FMLA

leave, so long as the activity on vacation was consistent with

the reasons for the FMLA leave.   Furthermore, the MWRA never

checked with DaPrato's doctor to confirm his representations

about his medical condition, despite admitting that this was an

option.   The MWRA also denied DaPrato's request for a copy of

the salary continuation policy he was subsequently found to have

violated.   Additionally, the jury could have found that the MWRA
                                                                   30


demonstrated hostility in the internal e-mail messages

responding to DaPrato's request for FMLA leave and the manner in

which it conducted its investigatory interview of DaPrato.20

     The ratio of punitive damages ($715,385) to compensatory

damages ($616,886) is also reasonable.   See Aleo, 466 Mass. at

417 (upholding punitive damages award with greater ratio of

punitive to compensatory damages).   See also Rhodes v. AIG

Domestic Claims, Inc., 461 Mass. 486, 503-504 (2012) ("ratio

. . . not excessive" where amount of punitive damages award was

double that of underlying judgment); Williamson-Green v.

Equipment 4 Rent, Inc., 89 Mass. App. Ct. 153, 154 (2016)

(upholding award of $3,692,657.40 in compensatory damages and

$5,900,000 in punitive damages).   And the deterrence purpose of

punitive damages justifies the sum awarded here, particularly

because the MWRA is a sophisticated and solvent public employer

expected to know and comply with the spirit and letter of the

FMLA law.   See Aleo, supra at 412 (deterrence); Labonte v.




     20The jury could also have reached the opposite conclusion
on punitive damages. In the past the MWRA had signed off on
DaPrato's requests for FMLA leave without objection, and the
jury could have found that the HR manager's "OMG" statement was
simply understandable frustration on the part of the MWRA with
an employee who made one request immediately after another
without appreciating or acknowledging the assistance he had
already received. The jury also had the benefit of the parking
lot video recordings, and could have drawn different inferences
regarding the state of DaPrato's recovery. It clearly chose to
credit DaPrato's explanation, not the MWRA's.
                                                                     31


Hutchins & Wheeler, 424 Mass. 813, 827 (1997) (financial

position of defendant may be considered when reviewing punitive

damages).   See also Ciccarelli v. School Dep't of Lowell, 70

Mass. App. Ct. 787, 798 (2007) (jury could have found violation

of G. L. c. 151B by public employer to be particularly

outrageous).

    iii.    Damages for emotional distress.   The MWRA argues that

the award of $200,000 damages for emotional distress, as found

by the jury and affirmed by the court, should be remitted

because it was excessive and not supported by the evidence.     We

will affirm such an award unless the court below committed an

"abuse of discretion . . . amounting to an error of law"

(citation omitted).   Labonte, 424 Mass. at 824.   See Reckis v.

Johnson & Johnson, 471 Mass. 272, 299 (2015), cert. denied, 136

S. Ct. 896 (2016) ("award of damages must stand unless . . . to

permit it to stand was an abuse of discretion on the part of the

court below, amounting to an error of law" [citation omitted]).

    It is an error of law for a court to allow an award of

damages for emotional distress that is "greatly disproportionate

to the injury proven or represented a miscarriage of justice."

Labonte, 424 Mass. at 824.   See Ayash v. Dana-Farber Cancer

Inst., 443 Mass. 367, 404, cert. denied, 546 U.S. 927 (2005)

("general rule" is "that a reviewing court should not disturb a

jury's award of damages unless it is clearly excessive in
                                                                    32


relation to what the plaintiff's evidence has demonstrated

damages to be").

    Here, we affirm the award of damages for emotional distress

because it was supported by the evidence and not greatly

disproportionate to the injury suffered.    DaPrato testified

that, due to the termination, "mentally, physically,

emotionally, I was a train wreck."   He consulted a doctor for

anxiety and experienced migraine headaches and other negative

health effects.    Furthermore, he spent three months finding new

employment, and due to economic necessity he was forced to alter

his retirement plans by making the difficult decision to elect

"early" pension benefits.    His subsequent series of new jobs,

while higher paying, lacked the job security, paid vacations,

and other benefits he enjoyed at the MWRA.

    In these circumstances, the jury reasonably could have

found that DaPrato experienced emotional distress due to

negative health and emotional effects following his termination.

See Labonte, 424 Mass. at 824 ("jury reasonably could have

concluded that the depression caused by the termination was

sufficient to warrant damages for emotional distress");

Dalrymple v. Winthrop, 50 Mass. App. Ct. 611, 620-621 & n.14

(2000) (upholding $200,000 damages award for emotional distress

under G. L. c. 151B, § 4, where jury had evidence that

wrongfully terminated plaintiff "felt humiliated and went into a
                                                                    33


depression").    It was also reasonable for the jury to infer that

a long-term employee, nearing retirement age, who "loved his

job" and was committed to the water quality mission of the MWRA,

would suffer emotional distress from wrongful termination of his

employment and the need to change his pension and retirement

planning.    See Massasoit Indus. Corp. v. Massachusetts Comm'n

Against Discrimination, 91 Mass. App. Ct. 208, 215 (2017)

(upholding emotional distress damages award under G. L. c. 151B,

§ 4, where long-time employee "suffered from anxiety and

diminished self-esteem" following wrongful termination);

Cariglia v. Hertz Equip. Rental Corp., 343 F. Supp. 2d 50, 56

(D. Mass. 2004) (inferring that "necessity of resorting to

retirement funds . . . was a source of considerable emotional

distress" for wrongfully terminated employee).     In short, the

evidence was sufficient for the jury to find that the emotional

injury suffered by the plaintiff was serious.      We thus affirm

the award in its entirety.

    d.      Calculation of FMLA front pay award.   The MWRA contends

that the judge erred in calculating the front pay damages that

DaPrato received on account of the diminishment of his pension

by his earlier than anticipated retirement. The judge informed

the parties that he would receive "an advisory decision from the

jury on FMLA, front pay."    This was proper:   as we held in

Esler, 473 Mass. at 782, relying on Traxler v. Multnomah County,
                                                                    34


596 F.3d 1007, 1012 (9th Cir. 2010), and other Federal cases,

"front pay under the FMLA is appropriate for a judge's

consideration."    The court in Traxler, in turn, explained that,

although "front pay is an equitable remedy," a "trial court,

sitting in equity, may nevertheless employ an advisory jury.

The ultimate decision, however, rests with the court."     Traxler,

supra at 1013.    The award of front pay under the FMLA is an

equitable decision that we review for an abuse of discretion.

Esler, supra.    We conclude that there was no abuse of

discretion.

     DaPrato was the beneficiary of a "traditional pension plan"

or "defined benefit plan" to which he and the MWRA both

contributed.21    The amount of the pension was contingent on

factors including his retirement age and number of years of

employment.     DaPrato planned to begin receiving his pension at

age sixty-six, the date of his anticipated retirement; due to

his termination, however, he retired at age sixty-two.     DaPrato

introduced testimony from an expert in economics and finance to

calculate the impact of his earlier than expected retirement on




     21DaPrato's expert defined a "traditional pension plan"
(i.e., a defined benefit plan) as one in which the pension
beneficiary receives a pension on retirement calculated
according to a certain formula. He contrasted this kind of plan
with a "defined contribution plan," such as a so-called "401(k)"
plan, in which contributions go into an individual account
belonging to the employee.
                                                                    35


the amount of his pension.   The expert assumed that DaPrato

would receive his pension from the date of his planned

retirement through the date of his statistically likely death.

He then used the MWRA's "pension calculator" and properly

discounted the amount of the pension to present value to arrive

at a value of $351,869 for DaPrato's pension losses.     In

determining front pay damages, the jury were instructed to

consider these same factors.22

     From the $351,869 that DaPrato claimed in front pay

damages, the jury and judge deducted the following amounts.

First, as instructed by the judge, the jury deducted pension

contributions that DaPrato would have otherwise made but did not

make due to his earlier than anticipated retirement.     The jury

deducted $51,869 to arrive at its advisory front pay award of

$300,000.   The judge observed that the jury's deduction to

reflect DaPrato's contributions was "approximate," and




     22The judge instructed the jury to consider, "[f]irst, the
date that Mr. DaPrato would've taken retirement if MWRA had not
terminated his employment unlawfully; second, Mr. DaPrato's life
expectancy expressed in terms of the number of years and months
he can reasonably expect to live beyond that retirement date;
third, the amount that Mr. DaPrato would've received in pension
if MWRA had considered his -- continued his employment through
his expected retirement date . . . fourth, the amount of pension
that Mr. DaPrato will receive as a result of his . . . firing
and early retirement. If this rate is lower than the amount of
pension he otherwise would receive -- received, then you may
find that Mr. DaPrato suffered front pay . . . damages."
                                                                    36


subsequently "reduce[d] the total pension loss by $60,000,

resulting in an award of $291,869 before considering the MWRA's

additional arguments."23    Second, the judge deducted the $103,203

in pension payments that DaPrato received and would receive from

the date of his termination until the date of his anticipated

retirement.    The judge rejected the MWRA's argument that he

should deduct a further $97,867 in so-called "excess" salary

between the greater amount that DaPrato earned from short-term

contract work he obtained following his termination and the

lesser amount that he would have earned by remaining at the

MWRA.     The judge ordered a front pay award of $188,666.

     We conclude that the judge made the aforementioned

deductions properly and did not abuse his discretion when he

declined to deduct DaPrato's "excess" salary.     An employee who

is wrongfully terminated on account of discrimination is

entitled to be made whole.     See Arban v. West Publ. Corp., 345

F.3d 390, 406 (6th Cir. 2003) (in FMLA retaliation case, where

plaintiff cannot be reinstated, "the question to be answered is

whether front pay damages are needed in a particular case to




     23DaPrato's expert approximated that he did not have to
make between $50,000 and $60,000 in pension contributions due to
his earlier than anticipated retirement. The judge's deduction
of $60,000, rather than the $51,869 deducted by the jury,
reflects the amount that DaPrato's counsel stated in closing
argument that the jury should deduct to account for these unmade
contributions.
                                                                    37


make the plaintiff whole").     See also Avitia v. Metropolitan

Club of Chicago, Inc., 49 F.3d 1219, 1231 (7th Cir. 1995)

(Posner, C.J.) ("when reinstatement is infeasible, the plaintiff

is free to seek in lieu of that remedy an award of 'front pay,'

designed to put him in the identical financial position that he

would have occupied had he been reinstated"); Blum v. Witco

Chem. Corp., 829 F.2d 367, 373 (1987) (front pay available under

"make-whole philosophy").     Lost pension benefits are part of the

"make whole" calculation.24

     The award of front pay "restor[ed] [DaPrato] to the

position [he] would have been in had the discrimination never

occurred" (citation omitted).     Blum, 829 F.2d at 373.   Had he

not been discharged in retaliation for the exercise of his FMLA

rights he would have retired at age sixty-six at a greater

pension.   The retaliation thus caused a "tangible loss"

calculated reasonably and precisely by a financial expert


     24For cases in which courts held as much, see School Comm.
of Norton v. Massachusetts Comm'n Against Discrimination, 63
Mass. App. Ct. 839, 849-850 (2005) (awarding lost pension
benefits in employment discrimination case); Ventresco v.
Liberty Mut. Ins. Co., 55 Mass. App. Ct. 201, 209 (2002) ("Lost
pension benefits are recoverable in an action under G. L.
c. 151B"); Blum v. Witco Chem. Corp., 829 F.2d 367, 374 (1987)
("Because of the paramount importance of pension benefits to an
employee's future financial security, it would be unfair to
exclude them from a calculation of front pay" in employment
discrimination case). See also Haddad v. Wal-Mart Stores, Inc.
(No. 1), 455 Mass. 91, 102 (2009) (front pay intended to
compensate plaintiff for loss of future earnings caused by
discriminatory conduct, including salary and benefits).
                                                                   38


(citation omitted).    School Comm. of Norton v. Massachusetts

Comm'n Against Discrimination, 63 Mass. App. Ct. 839, 849

(2005).   Because the judge deducted amounts included in the

claimed damages that DaPrato no longer had to pay or had already

received, there was no double recovery.

     The MWRA claims that the judge nonetheless erred when he

declined to offset the "excess" salary from DaPrato's

posttermination, short-term contract work against the damages

attributable to DaPrato's pension losses.     An employee has a

"duty to mitigate her damages by reasonable efforts to secure

other employment."    Haddad, 455 Mass. at 102.   In this case,

DaPrato properly and successfully mitigated his damages when he

sought and achieved other employment and actually earned more

than he previously had at the MWRA.     As a result, his backpay

award was minimal, just the three months he spent looking for

work.   The question then becomes whether the additional amounts

he earned above and beyond his former salary should be used to

offset his pension amounts.    We conclude that the trial judge

was well within his discretion in declining to do so.

     In the instant case DaPrato obtained various short-term

contract jobs.   This work may have provided him more

compensation, but it was less predictable and reliable and thus

more precarious.     Unlike at the MWRA, he also received no

pension; nor did those employers make contributions to a
                                                                 39


"401(k)" or other retirement plan.   See Blum, 829 F.2d at 374

("employee illegally discharged near the end of his working

career is particularly vulnerable to suffering economic injury

in the form of lost pension benefits").   In these circumstances,

it was within the judge's discretion not to offset earnings that

exceeded DaPrato's prior salary from the calculation of his lost

pension benefits.   See id. at 374-375 (employees earning more

money at current employers entitled to front pay for pension

losses without offsets for these additional earnings where

current employers had either no pension plans or inferior

pension plans); Ventura v. Federal Life Ins. Co., 571 F. Supp.

48, 50 (N.D. Ill. 1983) ("There is no question that if a

plaintiff cannot, in a new job, acquire rights to pension

benefits equivalent to what he would have had in the job from

which he was wrongfully dismissed, he cannot be made whole for

the discrimination unless he is given prospective benefits").

To hold otherwise would run counter to the "make whole"

principle of front pay awards, at least when an employee, as

here, does not receive any pension benefits from posttermination

employment.   It was also within the judge's discretion to

conclude that in the employment discrimination context, "if

there is to be a 'windfall,' such benefit should accrue to the

injured party rather than to the wrongdoer."   School Comm. of

Norton, 63 Mass. App. Ct. at 849, quoting Jones v. Wayland, 374
                                                                    40


Mass. 249, 262 (1978).    See Graefenhain v. Pabst Brewing Co.,

870 F.2d 1198, 1210 (7th Cir. 1989) (employer should not receive

"discrimination bonus" [citation omitted]).    We thus conclude

that there was no abuse of discretion and affirm the front pay

award in its entirety.

    3.   Conclusion.     For the foregoing reasons, we affirm the

judgment of the trial court.

                                     So ordered.
