Boadi v. Center for Human Development, Incorporated et al

Filing 144

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM OF DECISION AND ORDER on Award of Liquidated Damages and Front Pay. For the foregoing reasons, it is hereby ordered that:   1. Pursuant to 29 U.S.C. § 2617(a)(1)(A)(i)(I) and (a)(1)(A)(ii), judgment be entered for Plaintiff in the amount of the jury's award of $142,041.24 plus interest from April 21, 2013 to September 21, 2017.   2. Pursuant to 29 U. S.C. § 2617(a)(1)(A)(iii), judgment be entered for Plaintiff for liquidated damages in the amount of $142,041.24 plus interest from April 21, 2013 to September 21, 2017 (the same amount of interest calculated on the jury's award of damages).   3. Plaintiff's request for equitable relief pursuant to 29 U.S.C. § 2617(a)(1)(B) is DENIED.   See attached Memo of Decision & Order for complete details. (Calderon, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GRACE BOADI,
Plaintiff
v.
CENTER FOR HUMAN
DEVELOPMENT, INC. AND
CANDY PENNINGTON
Defendants

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Civil Case No. 14-cv-30162-KAR

MEMORANDUM OF DECISION AND ORDER ON AWARD OF LIQUIDATED DAMAGES
AND FRONT PAY
I.

INTRODUCTION

Grace Boadi ("Plaintiff") sued her former employer, the Center for Human Development
("CHD"), and her former supervisor, Candy Pennington (collectively "Defendants"), for
interfering with her rights under the Family and Medical Leave Act ("FMLA" or "Act"), 29
U.S.C. §§ 2601-2654, and for violating other statutory rights by terminating her employment on
April 21, 2013 while she was hospitalized due to the sudden onset of a mental impairment. After
the parties consented to this court's jurisdiction, see 28 U.S.C. § 636(c); Fed. R. Civ. P. 73,
Defendants' summary judgment motion was allowed, in part, and denied as to Plaintiff's FMLA
interference claim (Dkt. No. 84). On June 23, 2017, after a three day trial on the FMLA claim,
the jury found in Plaintiff's favor on liability and awarded her $112,592.34 for lost wages and
$29,448.90 for lost benefits from April 21, 2013 through the date of the verdict, for a total of
$142.041.24 (Dkt. No. 129).
The case now comes before the court for a determination of whether Plaintiff is entitled
to liquidated damages and front pay. See 29 U.S.C. § 2617(a)(1)(A)(iii) and (a)(1)(B). After
trial, the parties presented the court with testimony on the question of front pay, but did not
proffer additional evidence regarding liquidated damages. For the reasons that follow, the court
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awards Plaintiff $142,041.24 plus interest in liquidated damages and denies her request for front
pay.
II.

FACTUAL BACKGROUND

Because the jury found that Plaintiff had a "serious health condition," as defined by the
Act, that she or her spokesperson provided adequate notice of her need for FMLA leave, and that
Defendants interfered with Plaintiff's FMLA rights, the court recites the trial evidence in the light
most favorable to her (Dkt. No. 129). See Perdoni Bros., Inc. v. Concrete Sys., Inc., 35 F.3d 1, 5
(1st Cir. 1994) ("'[W]hen a party has a right to a jury trial on an issue involved in a legal claim,
the judge is of course bound by the jury's determination of that issue as it affects his disposition
of an accompanying equitable claim.'") (quoting Lincoln v. Bd. of Regents, 697 F.2d 928, 934
(11th Cir.)). See also Curtis v. Loether, 415 U.S. 189, 196 n.11 (1974). In 2003, Plaintiff began
employment as a direct care worker at CHD's Bonnyview program, a group home where she
provided support to the four male residents with mental impairments. Darlean Thomas was
Plaintiff's direct supervisor. Pennington was Bonnyview's program manager and Thomas'
supervisor. Both Thomas and Pennington were familiar with the FMLA, but had not received
FMLA training. The Bonnyview program supervisor, Jeffrey Trant, supervised Pennington.
Trant had received FMLA training.
During the seven day period beginning on Sunday, April 14, 2013, Plaintiff was
scheduled to work on Wednesday, April 17, Thursday, April 18, Friday, April 19, Saturday April
20, and Sunday, April 21, 2013. She was hospitalized from April 15 through April 24, 2013.
Plaintiff's son, James Takyi, transported her to the Mercy Medical Center ("Mercy")
emergency room on Monday, April 15, 2013, due to mental health issues that arose suddenly on
April 14. Because Plaintiff wanted Takyi to inform CHD of her status, Takyi called his friend,

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Raymond Frimpong, who worked at CHD, told him that Plaintiff was at the Mercy emergency
room because she was very sick, and asked who he should contact at CHD to report his mother's
hospitalization. Frimpong gave Takyi the number of the on-call supervisor for Bonnyview, who
Takyi called and notified that his mother was very ill, was in the emergency room, and was not
able to work.
Plaintiff was transported to Pembroke Hospital ("Pembroke"), a psychiatric facility, the
next day, April 16, 2013. Pennington called Takyi on that date and inquired about Plaintiff's
status. Takyi reported that Plaintiff was hospitalized and was very sick. He advised Pennington
that he was uncertain when Plaintiff would return to work. Pennington told him to have Plaintiff
call when she was able to do so.
When Takyi spoke to Thomas on the telephone the following day, April 17, 2013, he
reported that Plaintiff was very sick, was in the Mercy hospital,1 and was not able to work.
Takyi was unsure when his mother would be capable of returning to work. Thomas spoke to
Takyi a second time on that date and directed him to call CHD's human resources ("HR")
department regarding short term disability benefits ("STDB") if Plaintiff expected to be absent
from work for more than five days.
Heeding Thomas' advice, Takyi contacted Louise Ochrymowicz in the HR department
and reported that his mother was hospitalized. Ochrymowicz, who had limited FMLA training,
prepared a STDB packet and FMLA paperwork, including FMLA guidelines, which she signed
and dated on April 17, 2013. The STDB packet, dated April 17, 2013, acknowledged that CHD
had been informed that Plaintiff was on a medical leave of absence due to a non-work related
illness.
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By this time, Plaintiff was hospitalized at Pembroke, a psychiatric facility. Takyi told CHD
that his mother was hospitalized at Mercy to protect her privacy.
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Plaintiff was transported from Pembroke to South Shore Hospital ("South Shore") due to
injuries she sustained when she fell while speaking to Takyi on the telephone on Thursday, April
18, 2013. Pennington called Takyi as he drove to South Shore. She was angry and asked
whether Plaintiff could speak. When Takyi responded that she was able to speak, Pennington
told Takyi that it was not acceptable for him to call CHD instead of his mother and told him not
to call again. Pennington also directed Takyi to have Plaintiff obtain a medical certificate from
the hospital. Pennington did not ask further questions about Plaintiff's condition.
According to Takyi, Plaintiff could speak, but she was unintelligible. Plaintiff told the
jury that she was not able to call CHD during her hospital stay. After reviewing Plaintiff's
treatment records, Dr. Kadushin, Plaintiff's expert witness, opined that Plaintiff was not capable
of making decisions and following CHD's policies and procedures while she was hospitalized.
On April 19, 2013, Carol Fitzgerald, the vice president of HR, made contemporaneous
notes of her telephone conversation with Pennington, who reported to Fitzgerald that Plaintiff
was hospitalized and was unable to work.
Plaintiff returned to Pembroke on April 20, 2013. When Takyi attempted to obtain a
medical certificate from the hospital, the staff told him to get one from Plaintiff's primary care
physician ("PCP") after she was discharged.
On Monday, April 22, 2013, Pennington notified Fitzgerald that Plaintiff violated CHD's
no call/no show policy by being absent from work on April 19, 20, and 21, 2013 without
personally notifying CHD of her , as its call-in policy required. Considering Plaintiff to have
abandoned her job and voluntarily resigned, Fitzgerald drafted a termination letter that Trant
signed. Neither Pennington nor Fitzgerald told Trant that Plaintiff was hospitalized.

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Plaintiff was released from Pembroke on April 24, 2013. The next day, during an
appointment with her PCP, the doctor faxed a certificate to CHD indicating that Plaintiff needed
a leave of absence from April 23 to May 23, 2013 and could return to her full duties on May 24,
2013. Plaintiff went to CHD's HR department after her medical appointment where she
completed and signed the STDB forms and FMLA paperwork. Plaintiff also provided CHD with
a physician's statement indicating that she had been hospitalized. Plaintiff cooperated with CHD
by providing all of the information CHD requested.
Plaintiff called Pennington a day or two later to notify her that she would be returning to
work at CHD. Pennington told Plaintiff that Trant wanted to speak to her because she had
violated the no call/no show policy. When Plaintiff returned to CHD to sign the second page of
the STDB paperwork on April 30, 2013, Fitzgerald notified her that she had abandoned her job
by failing to call to report her absences. Fitzgerald did not seek any clarification or additional
information about the circumstances of Plaintiff's absence from work or the FMLA leave she had
requested through her physician's statement. During the first week of May, Plaintiff received
Trant's letter notifying her of her termination from employment with CHD as of April 21, 2013.
III.

ANALYSIS

A.

Liquidated Damages

The jury found that Defendants violated 29 U.S.C. § 2615(a)(1) (Dkt. No. 129). The
FMLA provides that in addition to lost wages, employment benefits, and interest, an employer
who violates the FMLA is liable for
an additional amount as liquidated damages equal to [lost wages, benefits, and interest],
except that if an employer who has violated section 2615 of this title proves to the
satisfaction of the court that the act or omission which violated section 2615 was in good
faith and that the employer had reasonable grounds for believing that the act or omission
was not a violation of section 2615 of this title, such court may, in the discretion of the
court, [decline to award liquidated damages].
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29 U.S.C. § 2617(a)(1)(A)(iii). See Pagán-Colón v. Walgreens of San Patricio, Inc., 697 F.3d 1,
12 (1st Cir. 2012). "Thus, an employer must prove both 'good faith' and 'reasonable grounds' to
escape liquidated damages, and the decision of whether to award liquidated damages is left to the
court." Id. "Because the employer bears the burden of proof, the statute creates a 'strong
presumption in favor of awarding liquidated damages.'" Id. at 12-13 (quoting Thom v. Am.
Standard, Inc., 666 F.3d 968, 976 (6th Cir. 2012)). See Reich v. S. New Eng. Telecomms. Corp.,
121 F.3d 58, 71 (2d Cir. 1997) ("The burden . . . 'is a difficult one to meet . . . and [d]ouble
damages are the norm, single damages the exception . . . .'") (quoting Brock v. Wilamowsky, 833
F.2d 11, 19 (2d Cir. 1987)).
"'To establish good faith under the FMLA, a defendant must show that "it honestly
intended to ascertain the dictates of the FMLA and to act in conformance with it."'" PagánColón, 697 F.3d at 14 (quoting Thom, 666 F.3d at 977). "Thus an employer will be liable for
liquidated damages where it '"either knew or showed reckless disregard for the matter of whether
its conduct was prohibited by statute."'" Id. at 15 (quoting Chao v. Hotel Oasis, Inc., 493 F.3d
26, 35 (1st Cir. 2007)). "The reasonableness requirement 'imposes an objective standard by
which to judge the employer's conduct.'" Persky v. Cendant Corp., 547 F. Supp. 2d 152, 157 (D.
Conn. 2008) (quoting Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 907-08 (3rd Cir. 1991)).
Plaintiff, an "eligible employee" under the Act, was entitled to take up to twelve weeks of
unpaid leave during a twelve month period for her inpatient hospitalization, "a serious health
condition" that rendered her unable to perform the functions of her position, after she provided
Defendants with adequate notice of her need for FMLA leave. 29 U.S.C. §§ 2611(11)(A),
2612(a)(1)(D) and (c). Because Plaintiff's illness and need for leave were unforeseeable, she was
permitted to give CHD notice "as soon as practicable under the facts and circumstances of [her]
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particular case." 29 C.F.R. § 825.303(a). The FMLA allows a family member to provide notice
"if the employee is unable to do so personally." Id. When the employee's need for FMLA leave
is unforeseeable, she is excused from complying with the employer's "usual and customary
notice and procedural requirements for leave" if she is unable to use the phone. 29 C.F.R. §
825.303(c). "In all cases, the employer should inquire further of the employee if it is necessary
to have more information about whether FMLA leave is being sought by the employee, and
obtain the necessary details of the leave to be taken." 29 C.F.R. § 825.302(c).
Defendants failed to present the kind of evidence that the First Circuit and other courts
recognize as indicia of an employer's good faith and reasonable grounds to believe that they were
in compliance with the FMLA. See Pagán-Colón, 697 F.3d at 15. First, "[a]n employer may
advance its good faith and reasonable grounds showings by demonstrating that it sought legal
advice about its obligations under the FMLA." Id. The employer in Pagán-Colón showed good
faith by consulting its attorney "several times" before terminating plaintiff. See id. Here, on the
other hand, there was no evidence that Defendants sought legal counsel or other advice on the
FMLA's requirements before they terminated Plaintiff's employment. Specifically, Defendants
failed to show that they made any effort to fulfill their duty to investigate whether the FMLA or
its regulations required Plaintiff to comply with their call-in policy, which required employees to
call to report their absences unless they were "physically unable to do so," and whether the
notices that Takyi provided were adequate. See Cooper v. Fulton Cty., 458 F.3d 1282, 1287-88
(11th Cir. 2006) (plaintiff was entitled to liquidated damages where his employer did not have an
objectively reasonable basis to believe its conduct was lawful when it terminated the plaintiff
without consulting an attorney or making any attempt to determine whether the termination
violated the FMLA or its regulations); Poff v. Prime Care Med., Inc., 1:13-CV-03066, 2015 WL

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5822369, at *7 (M.D. Pa. Oct. 1, 2015) (awarding liquidated damages based on employer's bad
faith as evinced by management's failure to discuss or investigate whether plaintiff's termination
violated the FMLA); Persky, 547 F. Supp. 2d at 161-62 (employer's conduct was deemed to be
objectively unreasonable and liquidated damages were awarded because the employer "took
minimal steps to ensure that it was complying with the FMLA").
Second, in Pagán-Colón, "there was ample evidence of communications breakdowns . . .
that prevented . . . the . . . managers who made the decision to terminate [plaintiff] from learning
of the facts of his hospitalization and absence in a timely manner." Pagán-Colón, 697 F.3d at
15. In the instant case, however, Plaintiff's son's multiple notifications that his mother was
hospitalized, was very sick, and was unable to work provided Defendants with adequate notice of
her entitlement to FMLA leave. See 29 C.F.R. § 825.303(a). Takyi relayed this information to
Pennington on April 16 and 18, 2013. On the latter date, Pennington directed Takyi to stop
calling thereby effectively barring him from notifying CHD that Plaintiff would be absent on
April 19, 20, and 21, 2013. Fitzgerald's contemporaneous note of her conversation with
Pennington on April 19, 2013 evinced their knowledge of Plaintiff's hospitalization before April
22, 2013, when they initiated the termination of her employment for failing to comply with
CHD's call-in policy on April 19, 20, and 21, 2013. The fact that Pennington, who made
termination decisions, had little FMLA training is further evidence of CHD's lack of good faith.
Compare Poff, 2015 WL 5822369, at *7 (employer's failure to provide adequate FMLA training
to its management employees who terminated employee was a factor in finding the employer
acted in bad faith). Although Trant, the program director, had received FMLA training,
Pennington and Fitzgerald did not tell him that Plaintiff was hospitalized. Neither Trant, nor
anyone at CHD, sought additional information regarding Plaintiff's condition, including whether

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she was personally capable of contacting CHD to explain her need for leave during her
hospitalization, before Trant signed Plaintiff's termination letter on April 22, 2013. See 29
U.S.C. § 825.303(c). See Thom, 666 F.3d at 977 (awarding liquidated damages based on
employer's bad faith for failing to investigate a misunderstanding regarding plaintiff's return
date); Persky, 547 F. Supp. 2d at 163 (employer was unable to sustain its burden of proving good
faith and reasonableness due to its lack of investigation).
Finally, distinct from the circumstances in Pagán-Colón, Defendants' failure to
reconsider their decision to terminate Plaintiff after she complied with the regulation's "as soon
as practicable" requirement is evidence of a failure to act in good faith. 29 C.F.R. § 825.303(a).
Contrast Pagán-Colón, 697 F.3d at 15 (plaintiff's employer's reconsideration of its termination
decision evinced its good faith and reasonable grounds for believing that it complied with the
FMLA). The day after Plaintiff was discharged from Pembroke, she provided CHD with proof
of her inpatient hospitalization and her physician's certificate indicating that she could return to
her full duties in a month and, a few days later, she told Pennington that she intended to return to
work. Defendants, however, did not even ask Plaintiff why she had not personally notified CHD
about her absences and need for leave and did not reexamine their decision to terminate
Plaintiff's employment. As soon as practicable under the circumstances, Plaintiff cooperated in
all respects in providing CHD the information it needed to ascertain that she could not personally
have called CHD while she was in the hospital, and was delusional, confused, and experiencing
seizures. Compare Thom, 666 F.3d at 977-78 ("the company's obdurate refusal to correct an
obvious mistake that constituted a wrongful discharge of this 36-year employee reinforces the
case for liquidated damages" based on bad faith).

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Defendants have not met their burden of demonstrating that they acted in good faith and
with objective reasonableness because they failed to ascertain whether they acted in conformance
with the dictates of the FMLA before terminating Plaintiff, who they knew had been hospitalized
for days, and for failing to reconsider their decision when they could, with no trouble, have
determined the basis for Plaintiff's reinstatement. Accordingly, they are liable for liquidated
damages.
B.

Front Pay

"When reinstatement is not available or practicable [as here], an award of front pay is
committed to the court's discretion." McPadden v. Wal-Mart Stores E., L.P., Case No. 14-cv475-SM, 2016 WL 4991488, at *4 (D.N.H. Sept. 16, 2016), reconsideration denied, Case No.
14-cv-475-SM, 2017 WL 61933 (D.N.H. Jan. 5, 2017) (citing Johnson v. Spencer Press of
Maine, Inc., 364 F.3d 368, 380 (1st Cir. 2004)). The First Circuit has "held that money damages
are a disfavored, yet nonetheless alternative, remedy to reinstatement . . . ." Rederford v. U.S.
Airways, Inc., 589 F.3d 30, 37 (1st Cir. 2009) (citing cases). Unlike proof of liquidated damages,
Plaintiff bears the initial burden to prove that she is entitled to front pay. See Torres v.
Caribbean Forms Mfr., 286 F. Supp. 2d 209, 221 (D.P.R. 2003); see also Excel Corp. v. Bosley,
165 F.3d 635, 640 (8th Cir. 1999); Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C. Cir. 1995)
("The plaintiff bears the initial burden of providing the district court 'with the essential data
necessary to calculate a reasonably certain front pay award,' including 'the amount of the
proposed award, the length of time the plaintiff expects to work for the defendant, and the
applicable discount rate.'") (citing McKnight v. Gen. Motors Corp., 973 F.2d 1366, 1372 (7th
Cir.1992)).

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Plaintiff, who was 57 at the time of the trial in June 2017, testified that she wanted to
work for ten more years before retiring. She was denied social security disability benefits
because the Social Security Administration determined that she was able to work. She was
trained for work as a certified nurse assistant, home health aide, and cosmetologist and testified
that she has attempted, without success, to find employment since the termination of her
employment with CHD.
"[A]ny award of front pay is necessarily speculative, since it represents an estimate of
what the successful plaintiff might have earned had he or she simply been reinstated at the close
of trial." McPadden, 2016 WL 4991488, at *4 (citing Cummings v. Standard Register Co., 265
F.3d 56, 66 (1st Cir. 2001)). See also Mathieu v. Gopher News Co., 273 F.3d 769, 782 (8th Cir.
2001) ("An award of front pay . . . is inherently speculative in length of time and when
considering possible mitigation by reason of other employment. It is based on probabilities
rather than actualities."). "When awarded, front pay is intended to be temporary in nature; its
purpose is simply to compensate a prevailing plaintiff until she is able to obtain comparable
employment elsewhere." McPadden, 2016 WL 4991488, at *4. See, e.g., Selgas v. American
Airlines, Inc., 104 F.3d 9, 12 (1st Cir. 1997). One factor that courts consider in determining
whether or not to award front pay includes "how well or thoroughly the jury compensated the
plaintiff for her injuries in its award . . . ." McPadden, 2016 WL 4991488, at *4. See Carey v.
Mt. Desert Island Hosp., 156 F.3d 31, 41 (1st Cir. 1998) (trial court's determination that
compensatory damages and back pay were adequate to compensate the plaintiff was, "standing
alone," sufficient to support its decision to refuse to award front pay); Webber v. Int'l Paper Co.,
307 F. Supp. 2d 119, 129 (D. Me. 2004) (court declined to award front pay because the jury's
award of compensatory damages and back pay "more than adequately compensated [plaintiff] for

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his injury"). A front pay award that "extends over many years to an estimated retirement date" is
disfavored "since the greater the period of time upon which a front pay award is calculated in a
case involving an at-will employee the less likely it is that the loss of future earnings can be
demonstrated with any degree of certainty or can reasonably be attributed to the illegal conduct
of the employer." Cummings, 265 F.3d at 66 (citation and internal punctuation omitted). See
Powers v. Grinnell Corp., 915 F.2d 34, 43 (1st Cir. 1990) (refusing to grant front pay request
that was "too speculative"). Further, "front-pay damages, as an award for future damages, 'must
be reduced to present value' to account for the difference in the value of money in the future and
the value of money today." Travers v. Flight Servs. & Sys., Inc., 808 F.3d 525, 544 (1st Cir.
2015) (citation omitted); see also Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 961 (1st Cir 1995)
("in calculating damages for front pay, [an expert] correctly chose to discount the amounts
representing the plaintiffs' future wages at an appropriate interest rate in order to determine the
present value of the future stream of income to which each plaintiff would have been entitled").
"While an expert witness is not necessary in every case, a claim for long-term front pay damages
that is not supported by expert testimony is likely to be too speculative to survive." Nashawaty
v. Winnipesaukee Flagship Corp., Civil No. 15-cv-118-JD, 2016 WL 6330574, at *2 (D.N.H.
Oct. 28, 2016) (citing Travers, 808 F.3d at 545).
Here, considering these factors, Plaintiff's request for a long-term front pay award until
her retirement in ten years is denied primarily because the jury's award of more than four years'
of lost wages and benefits plus interest and the statutory liquidated damages, which doubled the
jury's award, adequately compensated Plaintiff for her loss of employment. See Carey, 156 F.3d
at 41; Powers, 915 F.2d at 43; Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir.
1985) (availability of liquidated damages mitigates against award of front pay). While this

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reason, standing alone, is a sufficient basis for denying Plaintiff's request, see Carey, 156 F.3d at
41, Plaintiff's ability to work and the absence of expert testimony on the present value of her
projected wages makes an award based on her future employment too speculative. See Dollar v.
Smithway Motor Xpress, Inc., 710 F.3d 798, 811 n.4 (8th Cir. 2013) ("[G]eneral equitable
principles require that any equitable award be viewed in the greater context of a given case with
all of the varied, unpredictable, and unusual facts that may exist. Our review of the facts in this
case leaves us with the firm impression the award of front pay is too speculative and would be an
impermissible 'windfall' for the plaintiff."); Nashawaty, 2016 WL 6330574, at *2.
IV.

CONCLUSION

For the foregoing reasons, it is hereby ordered that:
1.

Pursuant to 29 U.S.C. § 2617(a)(1)(A)(i)(I) and (a)(1)(A)(ii), judgment be entered
for Plaintiff in the amount of the jury's award of $142,041.24 plus interest from
April 21, 2013 to September 21, 2017.

2.

Pursuant to 29 U.S.C. § 2617(a)(1)(A)(iii), judgment be entered for Plaintiff for
liquidated damages in the amount of $142,041.24 plus interest from April 21,
2013 to September 21, 2017 (the same amount of interest calculated on the jury's
award of damages).

3.

Plaintiff's request for equitable relief pursuant to 29 U.S.C. § 2617(a)(1)(B) is
DENIED.

IT IS SO ORDERED.
Date: September 21, 2017

_______________________________
KATHERINE A. ROBERTSON
United States Magistrate Judge

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