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Gourdeau v. City of Newton

United States District Court, D. Massachusetts

March 2, 2017





         In this 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.

         This 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.

         A. Factual Background

         The 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.

         On 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.

         After 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.[1]Defs.' Statement Facts ¶¶ 49-51; Pl.'s Statement Facts ¶ 47.

         Gourdeau 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.

         B. Procedural History

         Gourdeau 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.

         On 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.

         A jury 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.[2] 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.

         II. ANALYSIS

         The 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 cases.

         A. Inappropriateness of a General Verdict

         The 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.”).

         Although 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)[3]; 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).

         Here, 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 pending issue.[4]

         B. Causation Standard in FMLA Retaliation Cases

         At 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?

         1. FMLA's Background

         Congress 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.

         To protect these substantive rights, the FMLA makes it unlawful for any employer to retaliate against employees for invoking their substantive rights.[5] 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)).

         When, 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”).[6] Hodgens, 144 F.3d at 160.

         Under 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 ...

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