United States District Court, D. Massachusetts
MEMORANDUM OF DECISION
WILLIAM G. YOUNG U.S. DISTRICT JUDGE
action, Jo Anne Gourdeau (“Gourdeau”), employed
by the Newton Police Department (the
“Department”), brought suit against the City of
Newton (the “City”, collectively, with the
Department, the “Defendants”) and the Department
for gender discrimination in violation of Massachusetts
General Laws chapter 151B, section 4 (count I), retaliation
for filing an internal gender discrimination complaint in
violation of Massachusetts General Laws chapter 151B, section
4 (count II), and retaliation for use of protected family and
medical leave in violation of the Family and Medical Leave
Act (“FMLA” or the “Act”), 29 U.S.C.
sections 2601-2619 (count III). After the Court granted
summary judgment in favor of the City as to counts I and II,
count III proceeded to trial. Following a three-day trial,
the jury returned a verdict for the Defendants.
straightforward narrative belies an important and difficult
legal question that arose at the end of the trial. Before the
case concluded, this Court consulted the parties about its
plans to charge the jury to return a general verdict. Both
parties objected, raising a dispute about the appropriate
causation standard applicable in FMLA retaliation cases.
Recognizing the uncertainty concerning the correct legal
standard, this Court concluded that a general verdict would
be inappropriate, and instead decided to charge the jury to
return a special verdict under Federal Rule of Civil
Procedure 49(a). This memorandum explains this Court's
reasoning for doing so.
Department has employed Gourdeau since June 1, 1998.
Statement Undisputed Facts Supp. Mot. Summ. J. Defs.
(“Defs.' Statement Facts”) ¶ 12, ECF No.
41; Pl.'s Concise Statement Material Facts R.
(“Pl.'s Statement Facts”) ¶ 1, ECF No.
48. Initially hired as a patrol officer, Gourdeau has also
occupied the positions of Traffic Officer (2004-2009) and
Safety Officer (2009-2014). Defs.' Statement Facts ¶
17; Pl.'s Statement Facts ¶¶ 1-4. Between 2008
and 2012, Gourdeau took several days off for personal and
family-related medical reasons. Defs.' Statement Facts
¶ 14; Pl.'s Statement Facts ¶ 29.
November 23, 2012, the Department created a temporary Traffic
Officer specialist position. Defs.' Statement Facts
¶ 30; Pl.'s Statement Facts ¶ 5. Four officers,
including Gourdeau, applied for the position. Defs.'
Statement Facts ¶ 34; Pl.'s Statement Facts ¶
9. The Department did not select Gourdeau for the new
position. Defs.' Statement Facts ¶ 41; Pl.'s
Statement Facts ¶¶ 11-12.
her non-selection, Gourdeau's union filed a grievance
alleging that the City had violated an existing Collective
Bargaining Agreement by not selecting her as the temporary
Traffic Officer due to her seniority. Defs.' Statement
Facts ¶¶ 46-48; Pl.'s Statement Facts ¶
46. Ultimately, the grievance was settled and Gourdeau
received $4, 992 from the Department.Defs.' Statement Facts
¶¶ 49-51; Pl.'s Statement Facts ¶ 47.
claims that she was a victim of retaliation for using
FMLA-protected leave, as well as for complaining about not
being selected for the temporary Traffic Officer position.
Pl.'s Statement Facts ¶¶ 28, 33-35.
Specifically, Gourdeau argues that the Department did not
select her for the position in retaliation for taking
FMLA-protected leave. Id. at ¶ 28.
initiated this action on October 23, 2013, in the Middlesex
County Massachusetts Superior Court sitting in and for the
County of Middlesex. Notice Removal, Ex. 3, Compl. and Jury
Demand, ECF No. 1-3. The Defendants removed the case to this
Court on November 8, 2013. Notice Removal, ECF No. 1.
November 25, 2015, the Defendants filed a motion for summary
judgment, Mot. Summ. J. Defs., ECF No. 37, along with a
supporting memorandum, Mem. Supp. Mot. Summ. J. Defs., ECF
No. 38, and statement of facts, Defs.' Statement Facts.
On December 30, 2015, Gourdeau filed a memorandum opposing
the Defendants' motion for summary judgment, Pl.'s
Mem. Opp'n Defs.' Mot. Summ. J., ECF No. 49, along
with a supporting statement of facts, Pl.'s Statement
Facts. On January 11, 2016, the Defendants filed a reply.
Reply Br. Supp. Mot. Summ. J. Defs., ECF No. 52. Gourdeau
filed a sur-reply on January 15, 2016, Pl.'s Surreply
Opp'n Defs.' Mot. Summ. J. (Dkt. #37), ECF No. 54.
Upon the report and recommendation by Magistrate Judge
Cabell, Report and Recommendation Regarding Defs.' Mot.
Summ. J., ECF No. 61, District Judge Sorokin granted the
Defendants' motion for summary judgment as to counts I
and II and denied it with respect to count III. Electronic
Clerk's Notes, ECF No. 64.
trial on the surviving claim commenced on December 6, 2016.
Electronic Clerk's Notes, ECF No. 88. On December 8,
2016, the jury returned its special verdict. Jury Verdict, ECF
No. 98. The jury's answers mandated the entry of judgment
for the City of Newton. This Court entered judgment upon this
jury verdict on December 13, 2016. J., ECF No. 100.
Court here explains why it held that a general verdict was
inappropriate in this case and opted instead to charge the
jury to return a special verdict under Federal Rule of Civil
Procedure 49(a). The Court then turns to addressing the
appropriate causation standard applicable in FMLA retaliation
Inappropriateness of a General Verdict
jury charge is perhaps the greatest intellectual challenge
facing a busy trial judge. “The trial judge is
constantly required to be comprehensively brief, perhaps the
most daunting oxymoron in the law. The judge must be
understood by lay jurors while delineating complex legal
norms with scrupulous accuracy. It is the most challenging
law teaching of our time.” Collins v. Ex-Cell-O
Corp., 629 F.Supp. 540, 541 (D. Mass. 1986). Throughout
the jury trial, this Court --simply but rather naively --
assumed that a general verdict instruction was perfectly
suitable for this case. After all, that general jury verdicts
are the norm rather than the exception has been well-settled
law since the time English common law ruled this land. See
Griffin v. United States, 502 U.S. 46, 49-51 (1991)
(discussing the history of general jury verdicts in criminal
cases); see also Edmund M. Morgan, A Brief History of Special
Verdicts and Special Interrogatories, 32 Yale L.J. 575
(1923). General verdicts are acceptable even when multiple
theories of liability or guilt are submitted to the jury
under a single count, and the verdict does not specify which
of the theories the jury relied upon. See Claassen v.
United States, 142 U.S. 140, 146 (1891) (“[I]t is
settled law in this court, and in this country generally,
that in any criminal case a general verdict and judgment on
an indictment or information containing several counts cannot
be reversed on error if any one of the counts is good, and
warrants the judgment.”).
general verdicts are the norm, a district court “may
require a jury to return only a special verdict in the form
of a special written finding upon each issue of fact.”
Fed.R.Civ.P. 49(a)(1); see also Anderson v. Cryovac,
Inc., 862 F.2d 910, 915-16 (1st Cir. 1988) (discussing
district courts' application of special verdicts and
appropriate standard of review for such decisions). By using
special verdicts in appropriate cases, courts can better
focus the jury's attention on specific material issues of
fact (and preserve important issues for appeal). See Edson R.
Sunderland, Verdicts, General and Special, 29 Yale L.J. 253,
259 (1920) (“It is easy to make mistakes in dealing at
large with aggregates of facts. The special verdict compels
detailed consideration. But above all it enables the public,
the parties and the court to see what the jury really has
done.”). The risks, however, are fairly obvious.
Complex special verdicts may bore jurors and allow their
minds to wander. Collins, 629 F.Supp. at 541 (raising a
similar point about illustrative charges).
as in most cases, the offering of evidence concluded during
the morning, the charge conference was scheduled for that
afternoon, and the jury was told to return on the morrow to
hear closing arguments and receive their charge. During the
charge conference, counsel diligently brought to the
Court's attention an existing uncertainty concerning the
correct standard of causation (discussed below) applicable to
FMLA retaliation cases. More important, this Court was caught
short, realizing that it could not timely decide the correct
causation standard to teach to the jury. This practical
recognition made it clear that a general verdict would be
inappropriate. Therefore, this Court charged the jury to
return a special verdict. The alternative was to delay jury
deliberations until this Court decided the issue of the
appropriate causation standard for the case. This would cause
burdensome delays and likely prevent this Court from
examining this topic with the care justice requires. Such a
result is unacceptable. Now, however, weeks following the
jury trial and after rigorous study, a decent respect for the
able argument of counsel compels consideration of this
Causation Standard in FMLA Retaliation Cases
first, this case appeared to present fairly straightforward
legal issues. When the jury trial was proceeding to
conclusion, however, an interesting and difficult legal
question arose. Did Gourdeau carry the burden of proving that
the Department had used her FMLA-protected sick leave only as
a negative factor in reviewing her application for the
temporary Traffic Officer position? Or did Gourdeau carry the
heavier burden of proving that she would have gotten the
temporary position but for her taking FMLA-protected leave?
In other words, what is the legally required causation
standard applicable in FMLA retaliation cases?
enacted the FMLA with two main purposes, namely “to
balance the demands of the workplace with the needs of
families” and “to entitle employees to take
reasonable leave for medical reasons.” 29 U.S.C. §
2601(b)(1) & (2); Hodgens v. General Dynamics
Corp., 144 F.3d 151, 159 (1st Cir. 1998). The statute
includes two types of provisions, “those establishing
substantive rights and those providing protection for the
exercise of those rights.” Colburn v. Parker
Hannifin, 429 F.3d 325, 330 (1st Cir. 2005) (citing
inter alia 29 U.S.C. §§ 2612, 2614, 2615). In terms
of substantive rights, the FMLA entitles an employee to take
up to twelve weeks of leave during any twelve-month period
for a variety of reasons, including to care for a family
member, such as a parent, with a serious health condition. 29
U.S.C. § 2612(a)(1); Nagle v. Acton-Boxborough
Reg'l Sch. Dist., 576 F.3d 1, 2 (1st Cir. 2009);
Hodgens, 144 F.3d at 159. Upon an employee's return from
qualified FMLA leave, her employer must reinstate her to the
same or an equivalent position, without loss of accrued
seniority. 29 U.S.C. § 2614(a)(1) & (3); Colburn,
429 F.3d at 330; Hodgens, 144 F.3d at 159.
protect these substantive rights, the FMLA makes it unlawful
for any employer to retaliate against employees for invoking
their substantive rights. See Carrero-Ojeda v. Autoridad de
Energía Eléctrica, 755 F.3d 711, 718 (1st
Cir. 2014) (citing 29 U.S.C. § 2615(a)(1) & (2));
Henry v. United Bank, 686 F.3d 50, 55 (1st Cir.
2012) (“The Act also prohibits employers from
retaliating against employees for exercising their statutory
rights.”). Section 2615(a)(1) makes “[i]t . . .
unlawful for any employer to interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right
provided under” the Act. Section 2615(a)(2) holds
employers liable if they “discharge or in any other
manner discriminate against any individual for opposing any
practice made unlawful” under the Act. See Colburn, 429
F.3d at 331 (explaining the differences and overlaps between
claims brought under sections 2615(a)(1) and 2615(a)(2)).
as in this case, an employee sues under a retaliation theory,
the employer's motive is key, and the specific issue
becomes “whether the employer took the adverse action
because of a prohibited reason or for a legitimate
nondiscriminatory reason.” Hodgens, 144 F.3d at 160. In
Hodgens, the First Circuit relied on the familiar framework
established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 800-06 (1973), to analyze “the tricky issue
of motivation” in employment discrimination cases,
lacking direct evidence of discrimination, brought under
Title VII of the Civil Rights Act of 1964 (“Title
VII”). Hodgens, 144 F.3d at 160.
the McDonnell Douglas framework, a plaintiff employee bears
the initial burden of establishing a prima facie case of
discrimination or retaliation.
To make out a prima facie case for retaliation, [the
employee] must demonstrate that (1) he availed himself of a
protected 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, 144 F.3d at 161. If the employee
successfully makes out a prima facie case, the burden of
production then shifts to the employer “to articulate
some legitimate, nondiscriminatory reason for the
employee's [termination]” that is “legally
sufficient to justify a judgment for the [employer].”
Id. at 160-61 (quoting McDonnell Douglas, 411 U.S.
at 802 and Texas Dep't of Cmty. Affairs v.
Burdine,450 U.S. 248, 255 (1981)). If the employer
produces such evidence, “the presumption of
discrimination drops from the case, and the plaintiff retains
the ultimate burden of showing that the ...