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March 14, 2016

Legal Update
Christine M. Netski

SJC’s Esler decision is a reminder of the FMLA’s “proscriptive” reach

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In Esler v. Sylvia-Reardon and Massachusetts General Hospital, SJC-11899, 2015 WL 10435938 (Mar. 9, 2016),  the Massachusetts Supreme Judicial Court (“SJC”) revived a verdict in favor of an employee who claimed that her employer’s refusal to reinstate her after she exhausted all available FMLA leave constituted unlawful retaliation.  In doing so, the Court highlighted the distinction between the FMLA’s “prescriptive” and “proscriptive” provisions, reminding employers that providing an employee with all required leave under the statute does not insulate an employer from potential liability for retaliation.

Esler, a dialysis nurse at MGH, requested and received four weeks of FMLA leave for anxiety, during which her treating physician advised her to engage in “pleasurable activities and light exercise” to help relieve her stress.  While on leave, she traveled to New York to visit friends and fractured her wrist while ice-skating.  Shortly thereafter, Esler received a “rather nasty” call from her supervisor claiming that Esler had not submitted her FMLA paperwork and taking umbrage with the fact that Esler was “vacationing” during her leave.  Esler then requested an additional eight weeks of leave to recover from her fractured wrist and related surgery.  Roughly three weeks before Esler’s scheduled return, she informed her supervisor that she would be restricted to lifting no more than five pounds with her left hand and that she would need to wear a splint.  Esler’s supervisor told Esler that her restrictions could not be accommodated, advised Esler to cancel an occupational health assessment that was part of MGH’s return to work policy, and never inquired further about when Esler’s restrictions might be lifted.  MGH placed Esler on inactive status and then replaced her with a nurse whose training was not scheduled to be completed until after the date on which Esler would likely have been able to return to work without any restrictions.

Despite receiving her entire 12 week entitlement of FMLA leave, Esler claimed that her supervisor retaliated against her by not reinstating her when she was cleared to return with medical restrictions.  The jury agreed and returned a verdict of $1.2 million, but the trial judge entered judgment n.o.v. for the defendants.  The Appeals Court reversed the judgment n.o.v., concluding that the evidence, although circumstantial, was sufficient to support the jury’s finding that the articulated reason for Esler’s termination – that she was unable to perform the essential functions of her job – was a pretext for retaliation for exercising her FMLA rights.

On further appellate review, although the SJC acknowledged that the “issue [was] close,” it agreed with the Appeals Court that there was enough evidence proffered by Esler from which a jury could find that the hospital’s decision not to reinstate Esler after her FMLA leave expired was retaliatory.  The Court pointed to the supervisor’s apparent animus toward Esler, the fact that Esler’s temporary medical restrictions had no meaningful impact on her ability to function as a dialysis nurse, and the fact that the hospital hired a replacement who needed substantial training, and would be unable to complete the full duties of the position until well after the date Esler likely would have been able to return without restrictions.  Thus, because the issue in the case was whether the defendants violated the FMLA’s “proscriptive” provisions against penalizing an employee who had exercised rights under the statute, the fact that there was no violation of Esler’s substantive rights under the “prescriptive” provisions of the statute was irrelevant to the Court’s analysis.

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