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Daprato v. Massachusetts Water Resources Authority

Supreme Judicial Court of Massachusetts, Suffolk

June 5, 2019


          Heard: April 4, 2019.

         Civil 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 by him.

         The Supreme Judicial Court granted an application for direct appellate review.

          Meghan L. McNamara (Carolyn Francisco Murphy also present) for the defendant.

          Robert S. Mantell (David E. Belfort also present) for the plaintiff.

          John 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.

          KAFKER, J.

         The 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.

         The 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 awards.[1]

         1. Facts and procedural history.

         We recite the following facts that could have been found by the jury, reserving certain facts for later discussion.[2]

         The 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.

         In 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.[3] 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."

         DaPrato 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.[4] 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.

         DaPrato 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 26.[5]

          When 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."[6]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.

         On 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.[7] 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.

         Several 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.

         The 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."[8] 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.[9] 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.

          On 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."

         Immediately 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.

         In 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.

          2. Discussion.

         a. FMLA statute and regulations.

         The 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) .[10]

         To 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).

         b. Errors in jury instructions.

         The MWRA claims that it is entitled to a new trial based on several erroneous jury instructions regarding DaPrato's FMLA retaliation claim.[11] We consider the MWRA's claimed errors in turn.

          i. Jury instruction on standard of causation.

         The 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.[12] In relevant part, the judge instructed the jury:

"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 ...

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