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DaPrato v. Massachusetts Water Resources Authority

Superior Court of Massachusetts, Suffolk

February 20, 2018



          Douglas H. Wilkins, Associate Justice, Superior Court

          The 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) Plaintiff’s Request For Liquidated Damages ("Liquidated Damages Request"), and (2) Plaintiff’s Request That The Court Adopt The Jury’s Award Of Front Pay For The FMLA Claim, Or. Otherwise Establish A Front Pay Award ("Front Pay Request").


         After a 9-day jury trial the Jury returned the following verdict on January 18, 2018:

1. Did MWRA terminate Mr. DaPrato’s employment because of retaliation for taking or requesting FMLA leave?
[Place "X" in one box] YES X NO___
2. Did MWRA terminate Mr. DaPrato’s employment because of retaliation for taking or requesting an accommodation for his handicap?
[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 MWRA’s unlawful actions?
$200, 000 (in numbers)
6. Did MWRA act egregiously or outrageously because of an evil motive or reckless indifference to Mr. DaPrato’s 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)

         Before trial, the Court informed the parties that the jury’s 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.

         FMLA Leave Application, Documentation and Approval

         In late 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 DaPrato’s 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 MWRA’s computer network and could have been reviewed by Human Resources ("HR"), although there was no practice to do so.

         In December 2014 MWRA approved Mr. DaPrato’s 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.

          On January 8, 2015, Mr. DaPrato mailed to Karen Gay-Valente, MWRA’s Director Human Resources, with a "cc" to Andrea Murphy, HR’s 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. DaPrato’s 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."

         On 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-Valente’s and MWRA’s 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 "can’t 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.

         By 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 DaPrato’s 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.

         According 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 document.

         On February 4, 2015, DaPrato sent Ms. Murphy an e-mail asking, in part: "Will I need a Doctor’s note to come back to work?" Mr. DaPrato’s 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.

         Although no MWRA policy appeared to require a physician’s 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. Murphy’s affirmative answer to DaPrato’s 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. MWRA’s later investigation did not take account of these circumstances.

         On February 17, 2015, Ms. Murphy signed the Notice of Eligibility, approving consecutive FMLA leave from "2/6-3/20/15."

         FMLA Leave

         DaPrato’s 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."

          On 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 be helpful.

         Later 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 doctor’s apt on March 26th. I’m 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.

         As noted above, DaPrato’s 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 MWRA’s Director of Human Resources, Karen Gay-Valente and Ms. Murphy.

         Late on 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 ...

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