Retaliation against employees who exercise their right to medical leave is prohibited under Massachusetts and federal law. As with any employment discrimination suit, plaintiffs who bring retaliation claims must overcome various hurdles before having a jury hear and decide their case. Under Rule 12(b)(6) of the Massachusetts Rules of Civil Procedure and its federal corollary, for instance, an employer may file a motion near the start of the litigation asking the court to dismiss the case due to the alleged lack of a cognizable legal theory or the absence of sufficient facts to support a particular theory. As an example, a plaintiff who brings suit under the Family and Medical Leave Act against a company that has less than 50 employees would not survive a Rule 12(b)(6) motion because the law only generally applies to employers with at least 50 employees.
In addition, under Rule 56 of the Massachusetts Rules of Civil Procedure and its federal corollary, an employer will likely file a motion after the close of discovery once again asking the court to dismiss the case. Through this mechanism, the employer must show that – even when viewing all the evidence in the most favorable light to the employee – there’s no chance a reasonable jury could rule in his or her favor.
As illustrated in Esler v. Sylvia-Reardon, a favorable jury verdict in the employee’s favor can be ephemeral thanks to Massachusetts Rule 50(b). There, Marie Esler worked as a registered nurse for Massachusetts General Hospital and filed suit after the hospital allegedly terminated her employment in retaliation for taking medical leave under the FMLA. The jury found in her favor and awarded, among other sums, more than $500,000 in back pay that Ms. Esler lost as a result of her retaliatory discharge.
In a rare move, however, the trial judge granted the defendants’ Motion for Judgment Notwithstanding the Verdict (JNOV) pursuant to Rule 50(b), thus wiping out the verdict. On appeal, the Massachusetts Supreme Judicial (SJC) reversed the trial judge’s ruling and reinstated the back pay award. In doing so, the SJC noted that – similar to the summary judgment standard – a court must “consider whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the nonmoving party” in deciding whether to overturn a jury verdict pursuant to Rule 50(b). Notably, en route to this decision, the Massachusetts Appeals Court also overturned the trial judge’s grant of JNOV.
In getting her case to a jury, and as described above, the plaintiff in Esler overcame several dispositive motions. A judge who substitutes his or her judgment for that of a jury, while permissible under the rules, is an extreme step in light of the vetting that a case must undergo to get to that point. As Supreme Court Justice Benjamin Cardozo observed, the perspective and life experience that jurors of different backgrounds bring to a case is unlikely to be matched by a single adjudicator:
There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them — inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. … In this mental background every problem finds it setting. We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own.
Benjamin N. Cardozo, The Nature of the Judicial Process (1921).
Whether in federal or Massachusetts court, employment discrimination and workplace retaliation claims must survive a myriad of motions, both in order to get to trial and to keep a favorable jury verdict in tact. The roller coaster victory in Esler v. Sylvia-Reardon certainly highlights the wherewithal and patience employment discrimination victims must have to seek redress and ultimately prevail on their claims.
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