Nurse’s $1.2M jury verdict vacated by JNOV ruling

A Massachusetts Superior Court judge has set aside a $1.2 million jury verdict awarded to a nurse who claimed her employer, Massachusetts General Hospital, retaliated against her for taking time off under the Family and Medical Leave Act.

The plaintiff nurse argued that the verdict should have been left undisturbed because the evidence presented at trial established that the hospital had mistreated her for exercising her rights under the statute.

But Judge Linda E. Giles disagreed, finding that the hospital had articulated a legitimate, nondiscriminatory reason for not allowing the plaintiff, a dialysis nurse, to return to work with a splint after she broke her wrist while out on leave.

“This court is doubtful that the instant plaintiff even made out a prima facie case, which required her to demonstrate a causal connection between her non-reinstatement and the protected activity of taking FMLA,” Giles wrote. “It was incumbent on the plaintiff to show that that the defendants’ actions occurred under circumstances which give rise to an implication of unlawful discrimination.”

The 11-page decision is Esler v. Sylvia-Reardon.

‘Simply followed the law’

Eugene J. Sullivan III of Holtz & Reed, counsel to the defendant hospital, said while judges rarely grant JNOV motions, Giles was merely applying the law to the facts presented at trial.

“It’s everyone’s instinct, correctly, to be wary of overturning a jury verdict. But what the judge [here] wasn’t doing was making factual determinations or substituting her judgment for the jury’s,” Sullivan said. “She didn’t second-guess the jurors on those things that are entrusted to jurors; she simply followed the law.”

The Boston lawyer said, in theory, it is possible to retaliate against someone who has been provided 12 weeks of FMLA leave.

For example, if an employee applies for a different position a year after taking leave and argues that she did not get the new position because she had exercised a right under the statute, she could have grounds for a retaliation claim.

“But the simple argument here was that this was not an FMLA retaliation case because the hospital provided this plaintiff 12 weeks of leave, which is all anyone is due under the statute,” Sullivan said. “When she was unable to return to work, in part due to an injury she sustained while out on leave, the hospital terminated her employment. So there was nothing there to support a claim.”

Sullivan, who handled the case with his colleague Herbert L. Holtz, said the plaintiff had articulated a theory at summary judgment that allowed the case to go to trial.

“But when that proffered proof from summary judgment didn’t materialize at trial, I think the jury was left confused and basically fell into a reasonable accommodation analysis by looking at it like it was an ADA case,” he said. “They started asking whether the hospital could have held the job open for another four weeks, which they simply weren’t supposed to do.”

Margaret G. Plaza, who represented the plaintiff, said her client has consulted appellate counsel and intends to raise several grounds on appeal, including that she presented sufficient evidence at trial to meet her prima facie burden.

“We were stunned by the court’s decision,” she said. “Fourteen jurors deliberated somewhere between 10 and 12 hours, and I think their verdict should be respected.”

The Westborough, Mass., lawyer noted that Giles based her JNOV decision on trial transcript excerpts submitted by the defendant that favored the defense.

“I have a lot of respect for Judge Giles,” Plaza said. “But based on the standard she is supposed to apply, in my opinion, the verdict should not have been set aside.”

Inga S. Bernstein, vice president of the Massachusetts Employment Lawyers Association, secured a $1.1 million verdict last year that was overturned at the JNOV stage by Superior Court Judge Geraldine S. Hines.

Oral arguments are being scheduled in the case, which is on appeal, she said.

Bernstein, who practices at Zalkind, Duncan & Bernstein in Boston, said most judges are “loath to set aside verdicts” given the bedrock principle that a jury’s fact-finding determinations should be respected.

“I certainly hope this is not indicative of a trend,” Bernstein said. “It’s terribly concerning to me when these JNOVs are entered because our entire system of justice is grounded fundamentally in the jury trial process. For judges to effectively sit as 13th jurors with that kind of veto power is really troubling.”

Skating on thin ice

Plaintiff Marie Esler filed suit in 2010 alleging age and handicap discrimination and retaliation under Chapter 151B and the Family and Medical Leave Act.

She sought and was approved for FMLA leave in November 2008 after her supervisor urged her to take time off because she was under stress stemming from her divorce.

The plaintiff did not return to work in December and instead asked for additional FMLA leave so that she could undergo surgery for a broken wrist she suffered while ice skating in New York City. Her supervisor allowed her take leave until Feb. 6, 2009, when her 12 weeks of FMLA time would be exhausted.

When the plaintiff asked for more time to recover from her surgery, her supervisor agreed on the condition that she return to full duty on Feb. 16, 2009, with no restrictions.

The plaintiff responded that she could not return to work on that date but could come back four to six weeks later, wearing a splint. Determining that the plaintiff could not perform her job while wearing a splint, the hospital rejected the request.

At summary judgment, the court dismissed the Chapter 151B claims, leaving as the sole issue for trial whether the defendants retaliated against the plaintiff for taking FMLA leave.

The jury returned a verdict against both the hospital and the plaintiff’s former supervisor, awarding both front and back pay.

‘Nasty’ and ‘curt’

In granting the JNOV, Giles said there was no direct evidence of retaliation presented at trial and that the circumstantial evidence pointed to the opposite conclusion.

“To be sure, the plaintiff testified that [her supervisor] used a ‘nasty, curt’ tone to her in their telephone conversation of December 5, 2008,” the judge said. “But that tone could have been born as easily of [her] understandable frustration at learning that the plaintiff had been ice skating and vacationing while on medical leave as of animus toward the plaintiff.”

Even if the plaintiff had established a prima facie case, Giles wrote, her supervisor had articulated a legitimate, nondiscriminatory reason for not allowing her to return to work with a splint on her arm.

Giles noted that the plaintiff had failed to call a medical expert to testify that she was capable of performing the essential functions of her job without restrictions.

“[T]he act of cannulating seriously ill patients required the adroit use of both of the nurse’s hands, unencumbered by a brace that limited the mobility and cleansing of one hand,” she said. “By contrast, the plaintiff adduced no evidence that similarly situated employees about whom the defendants were suspicious were treated differently.”

At trial, the plaintiff mentioned but chose not to call two nurses who allegedly had taken FMLA leave and returned to work with restrictions, Giles wrote.

However, the judge said that the unrebutted evidence was that one of those nurses had returned to work after FMLA leave with a brace and a 5-pound weight restriction only because she was a resource nurse, not a staff nurse. The other nurse never returned to the Hemodialysis Unit where the plaintiff worked after her FMLA leave.

“While it is true that ‘protected conduct closely followed by adverse action may justify an inference of retaliatory motive, the defendants’ refusal to restore the plaintiff to her position followed her two successive FMLA leaves, plus her two additional weeks of unentitled leave,” Giles said. “This chronology raises no inference of retaliatory motive.”