Opinion
14-P-426
02-27-2015
MARIE ESLER v. MARY SYLVIA-REARDON, & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury found that the defendants unlawfully retaliated against the plaintiff for exercising her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. (2012), by not allowing her to return to work. The jury awarded her $567,500 in back pay, and $672,686 in front pay. The defendants filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative for new trial, pursuant to Mass.R.Civ.P. 50(b), as amended, 428 Mass. 1402 (1998). The motion judge (who was also the trial judge) allowed the defendants' motion for JNOV on the grounds that (1) the evidence did not permit a reasonable inference of retaliation, and (2) the plaintiff was not entitled to equitable relief in the form of front pay. Judgment entered for the defendants. The plaintiff appeals, and for the reasons set out below, we affirm the judge's order with respect to front pay, but reverse the allowance of JNOV.
On appeal, the defendants argue that the judge allowed the motion for new trial. Although it is true that the judge's order states that the motion for JNOV or, in the alternative, for new trial was allowed, a fair reading of the decision shows that she allowed only the request for JNOV and took no action on the alternate request for relief. On appeal, the defendants have not asked that the matter be remanded for consideration of their alternate request for relief should we (as we do) reverse the judge's JNOV decision.
Motion for JNOV. Before reaching the merits of the plaintiff's appeal, we pause to address the defendants' argument that the case proceeded to trial on theories that had been foreclosed by the earlier decision on summary judgment. The defendants argue that, despite the fact that the "Order" contained in the judge's summary judgment memorandum states that the retaliation claim would proceed to trial to the extent it was based on "the alleged refusal to place her on the schedule to return to work on February 16, 2009," the claim was further restricted by the judge's statement that "[r]esolving all ambiguities and drawing all reasonable factual inferences in Esler's favor, the court finds that a genuine issue of material fact remains as to whether Esler was treated differently and in deviation from its standard clearance policy so as to render the defendant's advanced reason for not allowing her to return to work after her FMLA leave a pretext." From this statement the defendants argue that (a) the sole issue for trial was whether the plaintiff had been treated differently and in deviation from the hospital's standard clearance policies, (b) this restriction on the retaliation claim is the "law of the case" such that no further proof or theory of retaliation could be admitted, and (c) the plaintiff's proof on this sole issue was insufficient. The argument fails on each of its first two prongs, and we accordingly do not need to reach the third.
First, we do not read the judge's summary judgment decision to limit the plaintiff's retaliation claim to the narrow question of whether the hospital complied with its clearance procedure. The statement on which the defendants rely does not act to limit the claim, but only identifies a factual dispute defeating summary judgment. This reading is corroborated by the final paragraph of the decision, which contains no similar restriction. That paragraph orders instead that the retaliation claim proceed to trial based on the allegation that the defendants retaliated by refusing to allow the plaintiff to return to work. We note that, consistent with this, the questions put to the jury were whether (a) each of the defendants had retaliated against the plaintiff by refusing to allow her to return to work (b) because she took FMLA leave. In short, we see nothing to indicate that the judge intended to, or did, restrict the plaintiff's claim solely to the question whether the defendants' complied with the hospital's clearance policy.
Second, even were we to construe the sentence in the manner the defendants propose, the law of the case doctrine would not apply. Interlocutory orders do not constitute law of the case as long as they remain subject to reconsideration. Winchester Gables, Inc. v. Host Marriott Corp., 70 Mass. App. Ct. 585, 593 (2007) ("law of the case" doctrine does not apply to "reconsideration of questions previously decided in a motion decision"). See Peterson v. Hopson, 306 Mass. 597, 602 (1940) ("[A] judge may modify a decision already announced, so long as the case has not passed beyond the power of the court"); Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994) ("Interlocutory orders . . . remain open to trial court reconsideration, and do not constitute the law of the case"); Negron-Almeda v. Santiago, 579 F.3d 45, 51 (1st Cir. 2009) (same). Thus, even were we to assume that the judge had on summary judgment restricted the claim to the narrow question the defendants propose, she remained free to allow the claim to go to the jury on the proof adduced at trial.
We turn now to the plaintiff's argument that JNOV was erroneously allowed. On review of JNOV, construing the evidence in the light most favorable to the plaintiffs, 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." Phelan v. May Dept. Stores Co., 443 Mass. 52, 55 (2004), quoting from Poirier v. Plymouth, 374 Mass. 206, 212 (1978). "Because the jury are a pillar of our justice system, nullifying a jury verdict is a matter for the utmost judicial circumspection." Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. 343, 350 (2008). Our review is de novo. See Phelan, supra.
Here, the evidence would have allowed the jury to find the following. The plaintiff was a registered nurse assigned to the hospital's acute hemodialysis unit. For various medical reasons including stress, she took an FMLA leave that began on November 14, 2008. During that leave, she traveled to New York City with friends and went ice skating -- activities that were consistent with her doctor's advice. While ice skating she fell and injured her wrist, information she conveyed to defendant Sylvia-Reardon by telephone. She further stated that she hoped that the injury was no more serious than a sprain, but that she would report on her condition after seeing her physician the next workday, December 8. Sylvia-Reardon responded negatively to this information and exclaimed, "You're on vacation while on FMLA leave?" She also informed the plaintiff that her job would be in jeopardy if she did not return to work in a week.
The wrist injury turned out to be more serious than hoped, requiring surgery followed by six weeks in a cast. The plaintiff requested a second FMLA leave to begin on December 8, 2008. Her FMLA leaves concluded on February 6, 2009.
During January 2009, the plaintiff's medical condition improved and her cast was removed. By the end of January, she had a good range of motion in her wrist, she was capable of performing many of the functions of daily life, including driving and household chores, and she began strengthening exercises using a five-pound weight.
On January 21, 2009, the plaintiff asked Sylvia-Reardon to delay her return to work by ten days (to February 16, 2009), and Sylvia-Reardon allowed that request. The plaintiff's doctor provided an opinion that she would be capable of returning to work on February 16, 2009, with the sole restriction of avoiding lifting more than five pounds. No component of the dialysis equipment handled by the nurses weighs more than five pounds.
On January 28, 2009, Sylvia-Reardon changed course and informed the plaintiff that she would not be permitted to return on February 16, 2009, because of the five-pound lifting restriction and the fact that the plaintiff would wear a wrist brace. The plaintiff responded that she wore the wrist brace only intermittently and that she expected her condition to improve even further by February 16, that the injury was to her nondominant hand, and that she felt she could perform all the key steps in the dialysis set up using her noninjured dominant hand.
Within a week of this conversation, Sylvia-Reardon replaced the plaintiff with a nurse who (in contrast to the plaintiff) was not qualified to perform hemodialysis on her own, was not permitted to treat more than one patient at a time, and was not qualified to treat patients in other areas of the hospital. The replacement nurse's training would not be complete until April 6, 2014 -- long after the plaintiff would have been physically able to return to work and handle the work of the dialysis unit.
Although circumstantial, the evidence was sufficient to permit a juror reasonably to infer that the defendants' proffered reasons for their decision to terminate the plaintiff were a pretext. Sylvia-Reardon's view that the plaintiff was engaged in "vacation" while on FMLA leave, combined with the fact that the plaintiff was replaced by a nurse who could not perform the duties of a hemodialysis nurse on her own, taken together with the evidence that the plaintiff's five-pound weight lifting restriction would not foreclose her from operating the hemodialysis equipment, permitted the jury to conclude that the plaintiff was not terminated because of her splint and lifting restriction, but because she took FMLA leave.
Front pay. The FMLA provides that "[a]ny employer who violates section 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." 29 U.S.C. § 2617(a)(1)(B) (2012). Thus, "[a]lthough reinstatement is the preferred equitable remedy," front pay may be awarded where reinstatement is not feasible. Downey v. Strain, 510 F.3d 534, 544 (5th Cir. 2007). Because "under the FMLA, front pay is an equitable remedy," it "must be determined by the court, both as to the availability of the remedy and the amount of any award." Traxler v. Multnomah County, 596 F.3d 1007, 1011 (9th Cir. 2010) (collecting cases). This approach is followed by the majority of Federal Courts of Appeal, and there is no reason or basis upon which to depart from them or to import (as the plaintiff urges) the different approach to front pay under G. L. c. 93A.
The United States Courts of Appeal for the Fourth, Fifth, and the Tenth Circuits have followed this same approach. Traxler v. Multnomah County, 596 F.3d at 1011. "Only the Sixth Circuit differs, holding that the district court determines the propriety of awarding front pay, but that the jury decides the actual amount of the award." Ibid., citing Arban v. West Publishing Corp., 345 F.3d 390, 406-407 (6th Cir. 2003) (affirming lower court's decision that plaintiff had not set forth any evidence, apart from mere speculation, to justify sending the question of front pay to the jury).
For these reasons, the judgment entered on the defendants' motion for JNOV is reversed with respect to the plaintiff's retaliation claim and judgment is to enter as to that claim on the jury's verdict. The judgment is otherwise affirmed.
So ordered.
By the Court (Green, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: February 27, 2015.