- Watch Your Words: Can A Stray Comment Sink an Employer’s FMLA Defense?
- June 8, 2016 | Authors: Patrick M. Curran; Todd M. Torres
- Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Boston Office
- The plaintiff in Esler v. Sylvia-Reardon, Marie Esler, requested four weeks of leave in November of 2008 due to symptoms associated with a blood disorder; her employer, Massachusetts General Hospital, approved the leave. During her leave, and in accordance with her doctor’s instructions that she engage in “pleasurable activities and light exercise to relieve stress,” Esler traveled to New York City to visit friends. While there, her nursing director Mary Sylvia-Reardon, called Esler and informed her that her FMLA paperwork had not been received and that her position was therefore in jeopardy. Esler responded that she was in New York City and likely would not be able to follow up with her physician that day. Sylvia-Reardon expressed surprise that Esler was “in New York City vacationing” while on FMLA leave. She told Esler that she had better return to work the following week or she would no longer have a job.
While in New York City, Esler fell while ice skating and learned, just after her conversation with Sylvia-Reardon, that she had fractured her wrist, injured her thumb, and would require hand surgery. As a result, prior to returning to work, she submitted a second request for FMLA leave that would end on February 6, 2009—which represented the full 12 weeks to which she was entitled under the FMLA. The hospital approved this subsequent request and, in late January of 2009, Esler asked Sylvia-Reardon to extend her leave an additional 10 days to February 16, 2009—a request that Sylvia-Reardon also approved.
Shortly before Esler’s anticipated return, her physician cleared her to return to work, but with one restriction: no lifting more than five pounds with her left hand. In addition, Esler informed Sylvia-Reardon that she would need to wear a brace. Sylvia-Reardon told Esler that she could not accommodate Esler’s lifting restriction or her need to wear a brace. Esler responded that she had already made significant progress toward her recovery. She also informed Sylvia-Reardon that she was only wearing a brace intermittently, that she had been performing household chores, that she could drive, and that she likely would have made even more progress by her return-to-work date, which was not for another two weeks.
Sylvia-Reardon nevertheless told Esler to cancel an occupational assessment, which was part of the return-to-work process. Sylvia-Reardon did not inquire when Esler’s restrictions would be lifted. Instead, the hospital transitioned Esler to inactive status, purportedly because she could not perform her job due to her restrictions. Notably, none of the equipment used by a hemodialysis nurse weighs more than five pounds.
On February 5, 2009—one day before Esler’s FMLA leave was to have expired—Sylvia-Reardon informed the hospital staff that a temporary nurse hired to cover Esler’s and other nurses’ absences would be replacing Esler permanently. At that time, however, the temporary nurse had not yet been fully trained to perform dialysis, and it was clear that she would not be fully trained until early April—by which time Esler’s work restrictions would have been lifted.
Esler filed suit against Sylvia-Reardon and Massachusetts General Hospital for, among other things, retaliating against her for having exercised her rights under the FMLA by taking leave. A Massachusetts jury agreed with Esler and awarded her $567,500 in back pay. The hospital was dismissed as a defendant during trial but Sylvia-Reardon, the only remaining defendant, moved for judgment notwithstanding the verdict. She argued the jury could not have found that she retaliated against Esler by not reinstating her at the end of her protected leave, since Esler required an additional 10 days past the end of the protected leave period before she could return to work and still had lingering work restrictions that, at least according to Sylvia-Reardon, could not be accommodated. The trial court agreed and overturned the jury’s verdict.
On appeal, however, the Massachusetts Appeals Court found that the evidence, though circumstantial, was sufficient to support the jury’s verdict in favor of Esler and reversed the trial court’s decision. Sylvia-Reardon sought further review in the Supreme Judicial Court—but the Commonwealth’s highest court agreed with the Appeals Court that there was sufficient evidence to support the jury’s verdict.
In reaching its decision, the Supreme Judicial Court noted that the mere fact that Esler was not able to return to her position following the expiration of her leave did not mean that Sylvia-Reardon’s decision had not been based on Esler’s use of FMLA leave as opposed to her legitimate concerns regarding Esler’s limitations. The court also questioned Sylvia-Reardon’s logic in replacing Esler with someone who was unable to perform the full duties of a hemodialysis nurse until after Esler’s restrictions would have been lifted. It also questioned Sylvia-Reardon’s inflexible stance against allowing Esler to return despite being told, two weeks before Esler’s anticipated return date, that Esler had made significant progress in her recovery.
The Court concluded that this evidence, coupled with Sylvia-Reardon’s comment about Esler “vacationing” in New York City while on FMLA leave—which suggested retaliatory bias, provided an adequate basis for the jury’s verdict.
The Supreme Judicial Court’s decision in Esler serves as an important reminder to Massachusetts employers that even when an employee is medically ineligible to return to his or her former position following the expiration of FMLA leave, an employer may nevertheless be found liable for retaliation if the employee can show that the employer’s true motivation for not reinstating him or her was retaliation for the employee’s having taken FMLA leave rather than the employee’s lingering medical restrictions. This is particularly true in situations like the one presented in Esler, where an employee’s medical eligibility is a close question and there is evidence that his or her condition is likely to improve in the near future.
In such close situations, stray comments can provide a jury with grounds for thinking that the employer acted out of retaliation even where, as in Esler, the employee was not cleared to return to work upon the expiration of protected leave. In addition, the timing of a new hire to replace an employee on leave— particularly where the employee on leave has restrictions that will be lifted or significantly reduced before the new hire is ready to assume his or her full duties—can suggest to a jury that the employer’s motivation was retaliatory.