The risk to employers of taking employment actions when annoyed, rather than using reason - particularly when it comes to decisions about leaves of absence - was emphasized by a recent decision by the Massachusetts Supreme Judicial Court.
In the case of DaPrato v. Massachusetts Water Resources Authority, the Supreme Judicial Court recently upheld a $1.3 million damage award to Mr Daprato, an ex-employee of the Water Resources Authority.
The damages consisted of $19,777 in back pay and $188,666 for lost future income and benefits; $200,000 for emotional distress and $715,385 in punitive damages plus $208,443 in liquidated damages and $605,690 in attorney fees and costs.
Mr DaPrato was fired from his job as an Information Technology Manager - where he had worked for many years and received positive reviews - after taking a vacation to Mexico while he was on a medical leave of absence.
He had informed HR that he was postponing a previously scheduled knee surgery to have a tumor removed from his right foot and his surgeon provided a medical certificate. This stated that the employee would require between four to six weeks of FMLA leave following the surgery and that he would need to wear a medical boot before being able to undertake weight-bearing activities.
After surgery, Mr DaPrato wished to return to work earlier than previously thought, but on approaching HR he was informed that he could not do so without a certificate from his surgeon - who was not available for several weeks. Mr DaPrato then requested to be paid under the employer’s salary continuation policy.
During the interim period, Mr DaPrato - who had a vacation to Mexico previously planned - went on the trip but curtailed his activities.
On receiving his paycheck it did not show what he had been expecting under the salary continuation policy. He emailed the HR Director and requested an updated paycheck, also stating that he did not want any “surprises” when he came to request additional FMLA leave for the knee surgery. The HR Director did not provide this to the employee but forwarded Mr DaPrato’s e-mail to an HR manager stating:
“Is he serious?”
The HR Manager replied:
“OMG.”
HR learned that Mr DaPrato had made the trip to Mexico and launched an investigation. A video was obtained of Mr DaPatro lifting luggage out of a car and although he explained that he had tried to return to work early and that he was wearing a boot while engaging in the doubtful activities - and that these activities did not conflict with the limitations described in the medical forms from his surgeon - the HR Director, together with another person, recommended firing Mr DaPrato, which duly happened. The company was not given the FMLA forms.
The HR Director testified to her belief that an employee on FMLA leave could not take a vacation and the company’s lawyers showed photos of Mr DaPrato standing holding a large fish - despite the fact that the company had no knowledge of the photos when the termination took place.
The State Supreme Court gave the following analysis that an employer should use when deciding whether or not an employee has exploited his FMLA leave:
“We clarify today that an employer may validly consider an employee’s conduct on vacation—or, for that matter, anywhere—that is inconsistent with his or her claimed reasons for medical leave, when the employer has such information at the time the employer is evaluating whether leave has been properly or improperly used.
Here, [the plaintiff] took FMLA leave to allow his foot to recover fully from surgery. Such recovery could take place in a warm climate as well as in a New England winter. That being said, vacationing while on FMLA leave may take either permissible or impermissible forms. An employee recovering from a leg injury may sit with his or her leg raised by the sea shore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process. Careful consideration of the reasons for the medical leave and the activities undertaken, including the timeline for rehabilitation and recovery, are required to determine whether FMLA leave has been abused.”
In reviewing the punitive and liquidated damages awards, the State High Court found that despite the employer being honest in its belief that it was complying with the FMLA, it was not objectively reasonable in its belief.
The Court found that the employer ignored Mr DaPrato’s medical records and FMLA application and made its decision based on “shock, outrage and offense” that the employee might request additional FMLA leave for knee surgery - as shown in the e-mail exchange between the HR Director and the HR Manager.
