November 3, 2015
action commenced in the Superior Court Department on March
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.
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
Jonathan J. Margolis for the plaintiff.
Hayes Slack & Chetan Tiwari, for Massachusetts Employment
Lawyers Association, amicus curiae, submitted a brief.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
N.E.3d 536] Botsford, J.
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. 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.) 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. The judge also ruled that the issue of
front pay should not have been submitted to the jury, and she
concluded that there was insufficient evidence to provide for
such an award in this case. In a decision issued pursuant to
its rule 1:28, the Appeals Court reversed the entry of
judgment for the defendants on the motion for judgment n.o.v.
and affirmed the judge's order with respect to front pay.
The case is now before us for [46 N.E.3d 537] 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.
summarize facts the jury could have found at trial, viewing
the evidence in the light most favorable to Esler and
disregarding evidence favorable to the defendants. See
O'Brien v. Pearson, 449 Mass. 377, 383,
868 N.E.2d 118 (2007). Esler began working as an acute
hemodialysis nurse in 1997. In March, 2003, she was hired by
the hospital as a registered nurse in the hemodialysis unit.
Sylvia-Reardon was the nursing director of the unit, and she
became Esler's supervisor in approximately 2006.
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."  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
after this conversation, Esler learned that she had fractured
her wrist and injured a tendon in her thumb, and that she
needed hand surgery. She submitted a second request for FMLA
leave, which the hospital approved beginning on December 8,
2008, and ending on February 6, ...