MEMORANDUM OF DECISION AND ORDER ON (1) PLAINTIFFâS
REQUEST FOR LIQUIDATED DAMAGES, AND (2) PLAINTIFFâS REQUEST
THAT THE COURT ADOPT THE JURYâS AWARD OF FRONT PAY FOR THE
FMLA CLAIM, OR OTHERWISE ESTABLISH A FRONT PAY AWARD
Douglas H. Wilkins, Associate Justice, Superior Court
plaintiff, Richard DaPrato ("Plaintiff" or
"DaPrato") has obtained a jury verdict in his favor
and against the Massachusetts Water Resources Authority
("MWRA") in this case for retaliation under state
and federal disability discrimination laws and the Federal
Family and Medical Leave Act (FMLA), 29 U.S.C. §§
2601 et seq. ("FMLA"). Two matters remain for
decision by the Court under the FMLA. Accordingly, on
February 7, 2018 DaPrato filed (1) Plaintiffâs Request For
Liquidated Damages ("Liquidated Damages Request"),
and (2) Plaintiffâs Request That The Court Adopt The Juryâs
Award Of Front Pay For The FMLA Claim, Or. Otherwise
Establish A Front Pay Award ("Front Pay Request").
9-day jury trial the Jury returned the following verdict on
January 18, 2018:
1. Did MWRA terminate Mr. DaPratoâs employment because of
retaliation for taking or requesting FMLA leave?
[Place "X" in one box] YES X NO___
2. Did MWRA terminate Mr. DaPratoâs employment because of
retaliation for taking or requesting an accommodation for his
[Place "X" in one box] YES X NO___
3. What sum of money if any, will fully and fairly
compensate Mr. DaPrato for his lost back pay?
$19, 777 (in numbers)
4. What sum of money, if any, will fully and fairly
compensate Mr. DaPrato for his lost front pay?
$300, 000 (in numbers)
5. What sum of money, if any, will fully and fairly
compensate Mr. DaPrato for his emotional distress
damages caused by MWRAâs unlawful actions?
$200, 000 (in numbers)
6. Did MWRA act egregiously or outrageously because of an
evil motive or reckless indifference to Mr. DaPratoâs rights?
[Place "X" in one box] YES X NO___
7. What sum of money will fairly punish MWRA for its
outrageous acts or deter similar behavior in the future?
$715, 385 (in numbers)
trial, the Court informed the parties that the juryâs verdict
on front pay under the FMLA would be advisory. See Esler
v. Sylvia-Reardon, 473 Mass. 775, 782 (2016). The
parties and the Court also recognized that the Court has the
responsibility to decide the question of liquidated damages
under the FMLA. 29 U.S.C. § 2617(a)(1) (proof "to
the satisfaction of the court"). The Court finds the
following facts by a preponderance of the credible evidence.
Leave Application, Documentation and Approval
winter or early spring, 2014, DaPrato informed his
supervisor, Russell Murray, of his planned vacation from
March 12 to March 25, 2015. Mr. Murray had no objection to
that plan at any time. This vacation followed DaPratoâs
annual pattern to go to Mexico at that time of year. MWRA
policy did not require DaPrato to inform anyone else of his
vacation plans. His vacation plans were entered on his
schedule on MWRAâs computer network and could have been
reviewed by Human Resources ("HR"), although there
was no practice to do so.
December 2014 MWRA approved Mr. DaPratoâs FMLA leave
application for surgery on his knee. It later approved his
substitute request for surgery on a neuroma from February 6
through March, without question and without hesitation.
January 8, 2015, Mr. DaPrato mailed to Karen Gay-Valente,
MWRAâs Director Human Resources, with a "cc" to
Andrea Murphy, HRâs Manager of Benefits & HRIS and his boss,
Russell Murray. The e-mail reported that his "surgeon
says the recovery is 3-4 weeks but will not be able to drive
as I will have a boot on my foot for an additional 3-4 weeks.
I have asked my surgeon, Dr. Lee, to complete the FMLA form
for surgery being done on February 6." Despite the
preliminary nature of this statement and the expected
supplementation by the surgeon herself, MWRA would later
claim that this e-mail represented that DaPrato would be
entirely unable to walk or drive for 6-8 weeks as though that
were the final word on the subject. DaPratoâs January 8
e-mail also pointed out his need for additional surgeries and
said: "[i]n total, I am looking at three surgeries this
year. I have yet to schedule these other two surgeries
because it is too far out into the future. I have never had
so many physical ailments at the same time in my entire life.
This is very discouraging."
January 8, Ms. Gay-Valente responded by e-mail "thank
you Richard-that is a lot to deal with." This was a
sincere expression of compassion, consistent with Ms.
Gay-Valenteâs and MWRAâs general commitment to
following the FMLA. Ms. Murphy also talked to DaPrato that
day, as reflected by a notation in her notebook. That
notation records a discussion about FMLA, including
rescheduling the sequence of his surgeries, by postponing the
knee surgery and having right foot surgery. She wrote
"canât wear shoes wearing slippers," which likely
referred to the then-current condition of his feet. The date
of the surgery appears as February 6, with the notation 3-4
weeks, along with a line striking the numbers 3-4 and the
number 8 appearing, apparently in their place.
e-mail to Ms. Murphy, dated January 22, 2015, DaPrato
submitted the standard FMLA form, showing a 4-6 week
anticipated leave. In relevant part, the application, as
signed by DaPratoâs surgeon on January 22, 2015, stated:
Pt. will undergo Right foot excision of Morton Neuroma with
implantation to resolve on 2/6/15. He must keep his foot
elevated and be NWB [non-weight bearing] for 4 weeks-then
transition to WB [weight-bearing] foot.
to this prediction, DaPrato would be putting weight on his
right foot by approximately March 6. The FMLA form estimated
the beginning and ending dates for the period of incapacity
as "4-6 weeks out of work from date of surgery."
MWRA later lost sight of the true content of this crucial
February 4, 2015, DaPrato sent Ms. Murphy an e-mail asking,
in part: "Will I need a Doctorâs note to come back to
work?" Mr. DaPratoâs purpose in asking this question was
to learn whether he could come back early from his FMLA
leave, as he had done on prior occasions. Coming back early
in March 2014 would have allowed him to keep from using up
vacation leave time, and would have avoided the need to use
salary continuation. His interest in returning to involvement
in his work at MWRA would continue during his FMLA leave,
when his e-mails included questions concerning his work as
Data Resource Manager.
no MWRA policy appeared to require a physicianâs note in the
circumstances, Ms. Murphy responded to DaPrato by e-mail
later that morning: "Yes. Just a note indicating you can
return without restrictions. If there are restrictions, we
need to be sure we can accommodate." Ms. Murphyâs
affirmative answer to DaPratoâs question turned out to be
crucial, because the need to obtain clearance from his
surgeon caused the key follow-up appointment to occur after
his Mexico vacation. MWRAâs later investigation did not take
account of these circumstances.
February 17, 2015, Ms. Murphy signed the Notice of
Eligibility, approving consecutive FMLA leave from
FMLA leave started on the day of his surgery, February 6,
2015. The surgeon successfully removed his neuroma, which was
relatively large. On February 19, 2015 while still on his
FMLA leave, DaPrato reminded his supervisor, Mr. Murray, of
his "vacation scheduled for March 12-25 in Mexico."
He reported his upcoming post-operative appointment, to
remove his stitches and evaluate when he could return to
work. He said: "According to HR I need a note from the
surgeon stating I can return to work." He added: "I
should have enough vacation days left unless the doctor tells
me I cannot go back to work. I guess we will cross that
bridge if/when we come to it."
February 24, DaPrato e-mailed Mr. Russell: "Scrap those
plans. I just spoke with Andrea Murphy and she said I cannot
come back to work. The Doctor would not give an official
release until my next appointment which is March 26. Andrea
is sending me some additional forms that will be needed for
salary continuation as I am running out of vacation
time." Before writing this e-mail, Ms. Murphy had told
DaPrato of a program called "salary continuation"
which operated as a short-term disability plan to cover
salary for periods during which an employee had no other
available leave time. Ms. Murphy had previously described
this program to DaPrato in December 2014, when he was
planning leave for a knee operation. She volunteered this
information to him in February 2015, in a sincere effort to
on February 24, Ms. Murphy e-mailed Ms. Gay-Valente, without
a "cc" to DaPrato saying:
Rick Daprato has an approved leave through 3/20. He needs to
extend his leave until his next doctorâs apt on March 26th.
Iâm not sure if he will be cleared to return to work at that
time. He ran out of sick leave last week and they used his
vacation. You will need to approve salary continuation for
him by sending an e-mail to payroll. Do you want to go retro
for the day and a half from last week or start is Monday Feb.
23? I sent him a new certification form today.
noted above, DaPratoâs FMLA documentation showed that, after
an initial period off his feet entirely, he would gradually
be putting more and more weight on his foot. The Court is not
convinced that he said anything different when he extended
his leave from March 20 to March 27 particularly where the
MWRA witnesses on this point misstated the January 8 e-mail
and FMLA leave documentation. Indeed, DaPrato appeared at a
meeting at MWRA on March 9, 2014, for all to see-including
MWRAâs Director of Human Resources, Karen Gay-Valente and Ms.
Friday, March 27, 2015, at 2:58 P.M. before his return to
work, DaPrato e-mailed Ray Wagner of HR, with a
"cc" to Ms. Murphy and Mr. Murray, asking for an