RICHARD A. DaPRATO
MASSACHUSETTS WATER RESOURCES AUTHORITY.
Heard: April 4, 2019.
action commenced in the Superior Court Department on
December 7, 2015. The case was tried before Douglas H.
Wilkins, J., and a motion for judgment notwithstanding
the verdict or for a new trial or remittitur was considered
Supreme Judicial Court granted an application for direct
L. McNamara (Carolyn Francisco Murphy also present) for the
S. Mantell (David E. Belfort also present) for the plaintiff.
Pagliaro & Martin J. Newhouse, for New England Legal
Foundation & another, amici curiae, submitted a brief.
Patricia A. Washienko & Rebecca G. Pontikes, for
Massachusetts Employment Lawyers Association, amicus curiae,
submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Massachusetts Water Resources Authority (MWRA) terminated the
employment of an information technology manager, Richard
DaPrato, after he went on vacation to Mexico during the final
two weeks of a paid medical leave to recover from foot
surgery. A jury found the MWRA liable for a retaliatory
termination in violation of the Family and Medical Leave Act
of 1993 (FMLA), 29 U.S.C. § 2615 (2012), the Americans
with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12112
(2012), and G. L. c. 151B, § 4 (16). The jury awarded
$19, 777 in "back pay" damages for DaPrato's
lost wages and made an "advisory" award of $300,
000 in "front pay" for the future loss of his
pension benefits. The jury also awarded $200, 000 in damages
for emotional distress and $715, 385 in punitive damages, and
the trial judge awarded $208, 443 in liquidated damages and
$605, 690 in attorney's fees and costs. The MWRA moved
for judgment notwithstanding the verdict or, in the
alternative, for a new trial or remittitur. The judge entered
remittitur as to the jury's front pay award, reducing it
to $188, 666, but otherwise denied the MWRA's motion,
resulting in total damages of $1, 332, 271, not including
attorney's fees, costs, and interest.
MWRA now appeals from the judgment below. It argues that a
new trial is warranted because the trial judge, over its
objections, gave erroneous jury instructions about the
causation standard for an FMLA retaliation claim and failed
to give a requested jury instruction concerning the so-called
"honest belief" defense to this claim. The MWRA
also contends that the judge erred when, over its objection,
he instructed the jury that they could not consider that
DaPrato "took or requested [FMLA] leave or spent time
recuperating in a particular location or in a particular
manner" when determining whether the MWRA had an
"independent reason" for terminating DaPrato.
Finally, it contends that the damages award should be vacated
or modified with respect to the liquidated, punitive, and
emotional distress damages, and recalculated with respect to
the front pay award. We affirm the judgment and damages
Facts and procedural history.
recite the following facts that could have been found by the
jury, reserving certain facts for later
MWRA is a public authority created by statute to provide
water and sewer services to municipalities in Massachusetts.
DaPrato began working for the MWRA in 2004 as a manager in
the information technology department. He received positive
performance evaluations, had no disciplinary history, and
"loved [his] job." DaPrato planned to retire from
the MWRA in 2019, at age sixty-six.
January 2015, DaPrato informed the MWRA's human resources
department (HR) by e-mail that he was postponing a previously
scheduled knee surgery and instead planning to take FMLA
leave to have an operation to remove a nerve tumor from his
right foot. Based on information received from his
surgeon, DaPrato "estimate[d]" that he would need
to take FMLA leave during his recovery period from February
6, 2015, the date of the surgery, through March 26, 2015.
DaPrato explained that his surgeon had told him that the
"recovery is [three to four] weeks but [he] will not be
able to drive as [he] will have a boot on [his] foot for an
additional [three to four] weeks."
subsequently provided HR with an FMLA application form
completed by his surgeon. In the form, the surgeon twice
explained that DaPrato would be able to
"transition" to putting weight on his right foot
after four weeks. Additionally, the surgeon estimated that
DaPrato would be "[four to six] weeks out of work from
date of surgery." The director of HR relied on this form
when approving DaPrato's FMLA leave.
had his foot surgery as scheduled on February 6, 2015. A few
weeks later, DaPrato informed the MWRA that he hoped to
return to work early because he could "walk around a
little without crutches" and was planning to drive his
car using his left foot. DaPrato had returned to work early
from previous FMLA leaves, and his hope was to do so in this
case as well in order to avoid exhausting his allotted
vacation leave time. HR told DaPrato, however, that he could
not return to work without written permission from his
doctor. On February 24, 2015, DaPrato informed the MWRA that
he would not be able to obtain his doctor's permission to
return to work until his next doctor's appointment on
March 26. In another FMLA leave application dated March 11
and signed by his surgeon, DaPrato requested an additional
week of FMLA leave from March 20 until March
DaPrato determined that he would exhaust his sick time and
vacation time before returning to work due to his inability
to return until March 2 6, he spoke to a manager in HR about
the MWRA's "salary continuation" policy for
providing pay to managers who took FMLA leave due to a
"serious health condition that prevents the employee
from performing job requirements."DaPrato had first
learned about this program in December 2014 from the same
manager, when he had informed her about his multiple upcoming
surgeries. The MWRA did not have a written application for
salary continuation separate from the FMLA leave request
forms, and HR applied the same "criteria" as it
applied to an FMLA leave request when deciding whether to
grant salary continuation. Based on the FMLA forms completed
by DaPrato's physician, the HR manager concluded that
DaPrato should be approved to receive "salary
continuation" benefits while on his FMLA leave.
March 12, 2015, DaPrato went on a vacation to a beach in
Mexico with his family. DaPrato took this trip every year,
had booked the travel arrangements well in advance, and had
informed his supervisor of the dates of his vacation on
multiple occasions. Due to his medical condition, DaPrato
stated that he limited the typical activities in which he
engaged while on vacation. As discussed infra, at
trial the MWRA introduced photographs of DaPrato standing on
a boat fishing, including one photograph where he was proudly
holding a large fish he had caught, to impeach DaPrato's
testimony about his lack of mobility. The MWRA did not,
however, possess these photographs when it reached its
termination decision. DaPrato returned from his vacation on
March 24, 2015.
days later, DaPrato contacted HR because his paycheck did not
reflect the salary continuation benefits that HR had told him
he would receive should he exhaust his allocated sick days
and vacation days while on unpaid FMLA leave. HR subsequently
provided DaPrato with $4, 614.22 in salary continuation
payments for March 16 through March 27, 2015. DaPrato went
back to work on March 30, 2015. On April 6, he sent an e-mail
message to HR asking for a copy of the salary continuation
policy so that he would not encounter any
"surprises" about using the policy when he took
FMLA leave for his previously postponed knee surgery. The
director of HR forwarded DaPrato's e-mail message to an
HR manager with the message "is he serious," to
which the manager responded "OMG." Despite this and
other requests, HR did not provide DaPrato with a copy of the
salary continuation policy prior to his termination.
same day as this e-mail exchange, HR learned that DaPrato had
gone on vacation to Mexico while on FMLA leave and receiving
salary continuation. The director of HR immediately launched
an investigation into the propriety of DaPrato's leave
because she did not think an employee "who's
seriously ill or disabled would be able to be on a
vacation." In the course of her investigation, the HR
director obtained video recordings that depicted DaPrato
walking, driving, and lifting luggage out of his car at an
MWRA facility on his FMLA leave. The director of HR believed
that these actions were inconsistent with the medical
conditions for which DaPrato had been granted FMLA leave and
received salary continuation benefits.
April 8, the HR director presented the video recordings to
the MWRA's senior management. The MWRA management
instructed the HR director and the MWRA director of
administration to interview DaPrato immediately. The
interviewers claimed that DaPrato initially denied parking at
the MWRA facility or going on vacation. DaPrato contested
this account of the meeting: he stated that he attempted to
explain that he had tried to come back to work before his
vacation and that his conduct on the video recordings was
consistent with the limitations described in his FMLA leave
forms. The interviewers concluded that DaPrato had
"misrepresent[ed] . . . his disability" for which
he had obtained FMLA leave and salary continuation. At the
end of the interview, the HR director gave DaPrato a letter
she had brought to the interview that stated that DaPrato was
now "prohibited from entering MWRA property"
because he had "been placed on administrative leave with
pay effective immediately pending further review of a matter
that has come to our attention."
following the interview, the interviewers reported to MWRA
senior management that DaPrato had lied to them about the
medical conditions for which he had received FMLA leave and
salary continuation benefits and recommended his termination.
The interviewers did not, however, present the FMLA leave
forms to senior management. Based on the report of the
interview, the MWRA's executive director, with the
agreement of the other senior managers, decided to terminate
DaPrato's employment. The director of HR sent DaPrato a
termination letter, dated April 9, 2015, informing him that
his employment was terminated as of April 10, 2015, due to
"[his] misrepresentation that [he was] unable to work
from March 12 to March 27, 2015, [his] receipt of extended
salary continuation pay to which [he was] not entitled, and
[his] failure to be truthful during [his] interview
concerning these matters on April 8, 2015." DaPrato
elected to begin receiving his pension, shortly after his
termination from the MWRA.
December 2015, DaPrato brought suit against the MWRA under
the FMLA, ADA, and G. L. c. 151B, § 4. Following trial,
the jury returned a verdict in DaPrato's favor on his
claims that the MWRA had terminated him in retaliation for
his taking FMLA leave for his foot surgery and expressing his
intention to take FMLA leave in the future. The judge and
jury awarded damages as described supra. The judge
denied the MWRA's motion for a judgment notwithstanding
the verdict or, in the alternative, for a new trial or
remittitur, with the exception of remittitur of the front pay
damages. The MWRA appealed from the final judgment, and we
transferred the case here on our own motion.
FMLA statute and regulations.
central claim in this case is that the MWRA terminated
DaPrato in retaliation for his exercise of his right to take
medical leave under the FMLA. In relevant part, the FMLA
provides that "[i]t shall be unlawful for any employer
to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this
subchapter." 29 U.S.C. § 2615(a)(1). It also states
that an employer may not "discharge or in any other
manner discriminate against any individual for opposing any
practice made unlawful by this subchapter." 29 U.S.C.
§ 2615(a) (2) . A regulation issued by the Department of
Labor further states that the FMLA's "prohibition
against interference prohibits an employer from
discriminating or retaliating against an employee . . . for
having exercised or attempted to exercise FMLA rights,"
and in particular explains that "employers cannot use
the taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions or disciplinary
actions." 29 C.F.R. § 825.220 (c) .
succeed on a claim of retaliation under the FMLA, an employee
"must show 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 v. General Dynamics Corp.,
144 F.3d 151, 161 (1st Cir. 1998).
Errors in jury instructions.
MWRA claims that it is entitled to a new trial based on
several erroneous jury instructions regarding DaPrato's
FMLA retaliation claim. We consider the MWRA's claimed
errors in turn.
Jury instruction on standard of causation.
MWRA argues that it is entitled to a new trial because the
judge gave an erroneous instruction to the jury concerning
the causation standard required for DaPrato to prove that his
termination was unlawful retaliation for his taking of FMLA
leave. In relevant part, the judge instructed
"Mr. DaPrato must prove that more likely than not he was
fired because of retaliation. He must show that his
taking leave or requesting leave in the future was a negative
factor in the MWRA's decision to terminate his employment
in the sense that, but for the retaliation, MWRA would not
have terminated him. If so, then he has met his burden
of proof on the fourth element. ... If Mr. DaPrato proves
that more likely than not MWRA fired him because of
retaliation for taking or requesting FMLA leave, then
you'll answer yes to question 1 [on the jury verdict
form], which ...