Jason Bissonnette v. Highland Park Market, Inc. (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S POST–TRIAL MOTIONS ¹ PLAINTIFF'S MOTION FOR LIQUIDATED DAMAGES

On July 19, 2013, the jury returned a verdict in favor of the plaintiff, Jason Bissonnette, against the defendant, his former employer, Highland Park Market, Inc., finding violations of the federal Family Medical Leave Act, 29 U.S.C. § 2612, et seq.  (FMLA), and a provision of the state Workers' Compensation Act, which prohibits discharge or discrimination because an employee has filed a workers' compensation claim, General Statutes § 31–290a.   The jury awarded economic damages in the amount of $103,000.   Although the jury rejected the plaintiff's claim for emotional distress damages, it found that the plaintiff was entitled to punitive damages in connection with the § 31–290a violation.   Following the return of the verdict, on July 26, 2013 the defendant filed several post-trial motions including a motion for judgment notwithstanding the verdict, a motion to set aside the verdict and a motion for remittitur (post-trial motions).   On July 25, 2013, the plaintiff filed a motion for liquidated damages (# 173), under the FMLA. The motions have been fully briefed and were argued on September 30, 2013.²

I

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT & MOTION TO SET ASIDE THE VERDICT

On a motion for judgment notwithstanding the verdict, the court “must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial ․ This standard of review extends deference to the judgment of the judge and the jury who were present to evaluate witnesses and testimony ․ Judgment notwithstanding the verdict should be granted only if [the trial court finds] that the jurors could not reasonably and legally have reached the conclusion that they did reach.”  (Citations omitted.)  Craine v. Trinity College, 259 Conn. 625, 635–36, 791 A.2d 518 (2002).  “The standard of review applied to the rendering of judgment notwithstanding the verdict is the same as the standard of review for directed verdicts ․ The question is whether the verdict clearly was against the weight of the evidence, indicating that the jury did not apply the law correctly to the facts ․ Directed verdicts are not favored in Connecticut jurisprudence ․ A verdict may be directed, however, when the decisive question is one of law or when the claim is that there is insufficient evidence to sustain a favorable verdict.”  (Citations omitted.)  Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn.App. 401, 413, 357 A.2d 936 (2004).

“Similarly, [the trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles ․” Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 775–76 (2014).  “As a general rule, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ․ that, in the absence of clear abuse, we shall not disturb.”  Id., 776.  “In making the determination [as to whether to set aside a verdict,] [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.”  (Internal quotation marks omitted.)  Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999).   See also Medcalf v. Washington Heights Condominium Assn., Inc., 57 Conn.App. 12, 15 n.2, 747 A.2d 532, cert. denied, 253 Conn. 923, 754 A.2d 797 (2000) (The “standard of review for motions to direct a verdict, motions to set aside a verdict and motions for judgment notwithstanding the verdict are the same”).

The defendant has moved for judgment notwithstanding the verdict based on its motion for directed verdict raised at the close of the plaintiff's evidence on the ground that the jury could not reasonably and legally have found in favor of the plaintiff on any of his claims.   The defendant moves to set aside the verdict on that the grounds that it is contrary to the law and against the evidence.³  The defendant has filed virtually identical memoranda in support of these motions.

A

Plaintiff's Substantive Claims

The “FMLA creates two interrelated substantive rights for employees ․ First, an employee has the right to take up to twelve weeks of leave ․ Second, an employee who takes FMLA leave has the right to be restored to his or her original position or to a position equivalent in benefits, pay, and conditions of employment upon return from leave ․ This right to reinstatement, however, is not absolute.   FMLA does not entitle the employee to any rights, benefits, or positions [he or she] would not have been entitled to had [he or she] not taken leave ․ It simply guarantees that an employee's taking leave will not result in a loss of job security or in other adverse employment actions ․ Accordingly, under FMLA, an employer may refuse to reinstate an employee following his or her return from leave if the employee would have been terminated for some other reason even if he or she had not taken leave.”   (Citations omitted;  internal quotation marks omitted.)  Cendant Corp. v. Commissioner of Labor, 276 Conn. 16, 23–24, 883 A.2d 789 (2005).

“FMLA provides two distinct causes of action for an employee whose rights have been violated under that act.   First, an employee may claim that her employer interfered with her rights under the act.  Section 2615(a)(1) of chapter 29 of the United States Code provides that ‘[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.’   An employee may also claim that her employer discriminated against her or unlawfully discharged her in retaliation for exercising her rights under FMLA.” ⁴ Id., 24.

1

FMLA Interference, 29 U.S.C. § 2615(a)(1)

The defendant argues that there is no basis for the jury to conclude that the plaintiff had been denied the benefits of the FMLA. Specifically, the defendant argues that the plaintiff's twelve weeks of FMLA leave had been granted and exhausted, and the plaintiff was then reinstated with no denial of FMLA benefits.   The plaintiff counters that there was sufficient evidence for the jury to have reasonably concluded that the defendant denied the plaintiff a right under the FMLA because of his leave.

The Connecticut Supreme Court has adopted the burden-shifting framework used by the majority of federal courts considering interference claims under the FMLA.⁵ The framework “requires the employee to make an initial showing that she has been denied a right under FMLA and that the denial of that right was caused in part by her leave.   See, e.g., Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir.2001) (‘[i]n order to prevail on her [interference] claim ․ [the employee] need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her’);  Smith v. Diffee Ford–Lincoln–Mercury, Inc., 298 F.3d 955, 960 (10th Cir.2002) (To allege a claim of interference an employee must establish that ‘she was denied her substantive rights under the FMLA for a reason connected with her FMLA leave ․ [A] reason for dismissal insufficiently related to FMLA leave will not support recovery under an interference theory.’).   Once an employee has made this showing, liability attaches to the employer for a violation of FMLA.” Cendant Corp. v. Commissioner of Labor, supra, 276 Conn. 28.  “[A]n employee need not prove the employer's intent when claiming that the employer interfered with her rights under FMLA ․ Accordingly, the framework used by the majority of federal courts holds an employer strictly liable for interfering with an employee's right to reinstatement, and places on the employer the ultimate burden of proving that the employee would have been terminated even if she had not taken leave.”  Id., 29–30.

In the present case, the plaintiff was laid off eleven days after he returned to work and replaced with an independent contractor.   Because the defendant negotiated with the independent contractor while the plaintiff was on leave and the cost savings to the defendant was unclear, the jury may have reasonably concluded that the plaintiff's reinstatement to his position was illusory and that the employer's various reasons for laying him off after his return from leave were not credible.⁶  Accordingly, there was sufficient evidence for the jury to have reasonably concluded that the defendant interfered with the plaintiff's rights under the FMLA.⁷

2

FMLA Retaliation, 29 U.S.C. § 2615(a)(2) & Workers' Compensation, General Statutes § 31–290a

In both its motion for judgment notwithstanding the verdict and motion to set aside the verdict, the defendant has combined its argument on FMLA retaliation and § 31–290a.   In footnote 3 of both motions, the defendant argues that the court improperly charged the jury on the causation standard for each of these claims and cites to University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), a 5–4 decision, which was decided by the United States Supreme Court on June 24, 2013, slightly over three weeks before the jury was charged in the present case.   In fact, the defendant requested a charge on the “but for” causation standard (established by Nassar in connection with federal Title VII retaliation claims, and by Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119, 128 (2009), in connection with federal age discrimination claims), in connection with the § 31–290a claim.   However, the defendant did not request a charge on “but for” causation in connection with its FMLA retaliation claim.   See docket entries # # 162, 164 and 167.   Although it submitted proposed interrogatories, the defendant did not submit an interrogatory on the issue of causation at all.   In stating the defendant's exceptions to the charge, the defendant's counsel assumed he previously requested or argued “but for” causation in connection with both retaliation claims.   In fact, he made neither a substantive argument concerning the Nassar or Gross cases, or filed a request for a charge on “but for” causation in connection with the FMLA retaliation claim.   No issues were raised concerning the interrogatories that ultimately went to the jury.   Further, the defendant did not present any argument to distinguish between causation under state law (§ 31–290a), and under federal law (FMLA), either at trial or during oral argument on the post-trial motions.   Nor did the defendant's counsel present any legal authority or argument to support the application of Nassar and/or Gross “but for” causation to the FMLA.⁸

In reflecting on the issue of causation as it relates specifically to the § 31–290a claim, there are compelling reasons to believe that our state appellate courts would not choose to follow the “but for” causation standard articulated by the United States Supreme Court in the Nassar and Gross cases, in connection with § 31–290a or other state anti-discrimination or retaliation statutes.   As noted in several decisions, our own Supreme Court is the ultimate authority on interpreting Connecticut statutes;  Johnson v. Manson, 196 Conn. 309, 319, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 (1986);  including our fair employment practices statutes.  Vollemans v. Wallingford, 103 Conn.App. 188, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).   As the court stated in Vollemans, “[i]n defining the contours of an employer's duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964 ․ the federal statutory counterpart to § 46a–60 ․ At the same time, while often a source of great assistance and persuasive force ․ it is axiomatic that decisions of the United States Supreme Court are not binding on Connecticut courts tasked with interpreting our General Statutes.   Rather, Connecticut is the final arbiter of its own laws.”  (Citation omitted;  internal quotation marks omitted.)   Vollemans v. Wallingford, supra, 103 Conn.App. 199–200.

Our Supreme Court has also stated, “we have ․ recognized that, under certain circumstances, federal law defines the beginning and not the end of our approach to the subject.”  (Internal quotation marks omitted.)  State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989).   For example, in Vollemans, the court declined to adopt the United States Supreme Court's interpretation that, as to a claim related to termination of employment brought under federal law, the requirement that a charge of discrimination be filed with the appropriate administrative agency within 180 days of the date of the conduct complained of begins to run on the date that the employer notifies the employee of the termination.⁹  As the court explained, “[o]ur fair employment practices statutes were enacted to eliminate discrimination in employment.   They are remedial and receive a liberal construction.   We therefore conclude that, in an age discrimination action [brought under § 46a–60] in which the allegedly discriminatory practice is the termination of employment, the alleged act of discrimination transpires on the final date of employment, rather than when the employee receives notice of termination.   Accordingly, any complaint must be filed with the commission within 180 days of that date.”  Vollemans v. Wallingford, supra, 103 Conn.App. 219.

In pertinent part, the FMLA discrimination provision, 29 U.S.C. § 2615(a)(2) provides:  “It shall be unlawful for any person to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.”  Section 31–290a provides:  “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.”

The defendant argues there is no basis for the jury to reasonably infer that the plaintiff was terminated in retaliation for taking FMLA leave or filing a workers' compensation claim.   Specifically, the defendant argues that it has provided a legitimate, nondiscriminatory business reason—cost savings—for discharging the plaintiff, and the plaintiff has not submitted sufficient evidence to demonstrate or persuade the jury that the defendant's reason was not true.   The plaintiff counters that there was sufficient evidence for the jury to have reasonably inferred and concluded that the defendant terminated the plaintiff in retaliation for asserting his rights pursuant to these statutes.

“Claims of employment discrimination are evaluated under the burden shifting analysis set forth in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53–54, 578 A.2d 1054 (1990) ․ Section 31–290a(a) prohibits an employer from discharging or otherwise discriminating against an employee because the employee had filed a claim for workers' compensation benefits or otherwise exercised her rights under the act.”  Martin v. Westport, 108 Conn.App. 710, 717, 950 A.2d 19 (2008).   FMLA violations and § 31–290a claims for retaliation may be analyzed under the same framework.   See Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 53 (“In setting forth the burden of proof requirements in a § 31–290a action, we look to federal law for guidance” discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).  “In adjudicating retaliation claims, courts follow the familiar burden-shifting approach of [McDonnell Douglas].”  Kaytor v. Electric Boat Corp., 609 F.3d 537, 552, (2d Cir.2010).  “In order to make out a prima facie case [for retaliation], [the plaintiff] must establish that:  1) he exercised rights protected under the FMLA;  2) he was qualified for his position;  3) he suffered an adverse employment action;  and 4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.”  Potenza v. New York, 365 F.3d 165, 168 (2d Cir.2004).  “If the plaintiff has met this burden of establishing a prima facie case (which is generally not understood by courts to be onerous), under the McDonnell Douglas methodology the defendant must merely articulate (not prove), via admissible evidence, a legitimate reason for the employment decision ․ At that point, the plaintiff must have the opportunity to demonstrate that the employer's proffered reason was not the true reason for the employment decision, which may be accomplished either by persuading the trier of fact that a discriminatory reason more likely than not motivated the employer, or by persuading the trier of fact that the employer's proffered explanation is unworthy of belief.”  (Emphasis in original;  internal quotation marks omitted.)   Nurse v. Windham Community Memorial Hosp., United States District Court, Docket No. 3:10CV00177 (CSH) (D.Conn. December 28, 2012).

In the present case, the jury may have reasonably found that the defendant unlawfully discharged the plaintiff in retaliation for exercising his rights under the FMLA and for exercising his rights under the Workers' Compensation Act. On November 29, 2007, the plaintiff reported a workplace injury.   The plaintiff testified that he formally requested FMLA leave on January 24, 2009, but did not hear a response for five months, and, at a later meeting, Rhett Beauchemin, the human resources manager for Highland Park Market, told him to switch his claim from workers' compensation to his personal health insurance because his injury was not work-related.   The plaintiff refused to switch, filed his workers' compensation claim and took FMLA leave.   After returning from full-time FMLA leave on September 21, 200, pursuant to his doctor's recommendation, the plaintiff worked part time until he was terminated on October 5, 2009.   Also, certain light duty accommodation requests made upon his return to work were denied.

Based on the foregoing evidence, and the temporal proximity of his return from FMLA leave and his discharge, the plaintiff established a prima facie case for retaliation.   See Kaytor v. Electric Boat Corp., supra, 609 F.3d 552 (“Close temporal proximity between the plaintiff's protected action and the employer's adverse employment action may in itself be sufficient to establish the requisite causal connection between a protected activity and retaliatory action”).   In addition to the evidence establishing a prima facie case, the evidence established that the defendant did not consider terminating the plaintiff's employment until a point in time after he filed for workers' compensation benefits and requested FMLA leave.   In fact, prior to taking FMLA leave, the plaintiff had only positive performances reviews and consistent raises in salary.   It was only after he went on FMLA leave that the defendant decided to permanently replace him with an independent contractor.   Devanney testified that he began negotiating with the plaintiff's replacement while the plaintiff was out on leave.   After the plaintiff returned to work on a limited schedule of four hours per day, on September 30, 2009, Devanney signed a contract with the same IT firm that the plaintiff had arranged to cover for him during his absence.¹⁰

In addition, there were inconsistencies in the defendant's stated reasons for the plaintiff's layoff presented at trial from which the jury may have reasonably concluded that the defendant's articulated nondiscriminatory business reason was a pretext for discrimination.   For example, the plaintiff testified that on October 5, 2009, Beauchemin told him that he was being terminated because of the poor economy, while the plaintiff's job profile states that the reason for his termination was “lack of work.”   See plaintiff's exhibit 40.   Although the job profile indicated the reason was due to a lack of work and Devanney and others testified that a reduction in force and/or certain cost savings were necessary because of financial losses suffered by the defendant, an independent IT firm was hired to do all the work previously performed by the plaintiff.   Finally, the evidence established that the plaintiff was not considered to be part of any reduction in force until after he began his FMLA leave.   Viewing all the foregoing evidence, and all the inferences that may be reasonably drawn therefrom, in a light most favorable to sustaining the verdict, the jury may have reasonably concluded that inconsistencies in the stated reasons for the plaintiff's discharge established that these reasons were pretexts for discrimination and retaliation for the plaintiff's exercise of his rights under the FMLA and the Workers' Compensation Act.

II

MOTION FOR REMITTITUR

“General Statutes § 52–216a provides, in relevant part:  If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon the failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial.”  (Internal quotation marks omitted.)   Johnson v. Pike, 136 Conn.App. 224, 225, 46 A.3d 191 (2012).   A remittitur impacts the “delicate balance between two of the most basic principles of our law:  the constitutional right of litigants to have the jury determine the amount of damages awarded;  and the trial court's broad authority to supervise the trial process.”  Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 277, 32 A.3d 318 (2011).

“In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict ․ Upon completing that review, the court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant ․ The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption ․ The court's broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court's explicit and unchallenged instructions.”   (Citations omitted;  internal quotation marks omitted.)  Id., 281.

The defendant argues that the court should remit the $102,999 of the economic damages award and, noting that nominal damages are not permitted for FMLA claims, allow only $1 as nominal damages in connection with the plaintiff's § 31–290a claim because the jury's award of damages was “impermissibly the by-product of guesswork, speculation or conjecture.”   Specifically, the defendant asserts that the jury awarded economic damages based upon two levels of speculation:  (1) the plaintiff would have maintained employment with the defendant during his seventeen-week period of incapacity between October 15, 2009 and February 15, 2010, and;  (2) the plaintiff would have resumed employment for the defendant in the middle of February 2010.

The plaintiff counters that the defendant's argument is based on a misrepresentation of the evidence.   Specifically, the plaintiff argues that (1) the jury's award of economic damages was not based on speculation because he demonstrated that he would have been able to work at reduced hours for the defendant between October 15, 2009 and February 15, 2010;  and, (2) he would have been able to work full time for the defendant commencing at the middle of February 2010.

The jury awarded economic damages in the amount of $103,000.   To the extent of $102,997.21, the court finds that this award was not the by-product of guesswork, speculation or conjecture.¹¹  First, the jury's determination that the plaintiff would have been able to work for the defendant between October 15, 2009 and February 15, 2010, was supported by the evidence.   The plaintiff testified that upon his return to work from surgical leave, he was able to perform his work because his position for the defendant was a sedentary desk job.   The evidence reflected that Dr. Krompinger's plan for returning the plaintiff back into the Highland Park Market workforce was to gradually increase his time at work, starting at four hours per day, until he was able to work full time.   After a couple of weeks of work, from September 21, 2009 until October 5, 2009, the plaintiff was discharged.   At the time of his October 15, 2009 medical visit, Dr. Krompinger was ready to take the plaintiff off of leave and put him back to full duty and only reclassified him as “temporarily totally disabled” because he lost his job.   Dr. Krompinger was of the opinion that “from a physical capability standpoint, he is not able to look for gainful employment.”   The plaintiff explained that his change in status to totally disabled did not mean that he would not have been able to continue to perform his Highland Park Market duties, but rather that he was incapable of engaging in the activities necessary to look for a new job such as driving to various job interviews.

The plaintiff further testified that he was able to work remotely as Highland Park Market's information technology department from any first floor office that contained a chair, a desk, and a computer.   This assertion was reinforced by the testimony of Beauchemin who believed that “there are elements of [the plaintiff's] job that certainly could be done remotely.”   In fact, Devanney testified that the work performed by PDS2K, the information technology firm hired by Highland Park Market to replace the plaintiff, was allowed to work remotely.   Therefore, the testimony of the plaintiff, Beauchemin, and Devanney supported the jury's finding that the plaintiff would have maintained his employment with the defendant from October 15, 2009 through February 15, 2010.

Second, the jury's determination that the plaintiff would have resumed working full time by the middle of February 2010 was also supported by the evidence.   The jury's finding that the plaintiff would have returned to full-time work with the defendant in that time frame was consistent with Dr. Krompinger's initial recovery plan that anticipated the plaintiff's release to a full-time sedentary job in January of 2010.¹²  The plaintiff testified, and plaintiff's exhibit 46 reflects, that on February 2, 2010, Dr. Krompinger wrote a medical note stating that the plaintiff was able to return back to office work as of February 15, 2010.¹³  Therefore, the jury's inclusion of economic damages in the amount of $102,997.21 ¹⁴ was supported by the evidence and was not the by-product of guesswork, speculation or conjecture and so does not shock the sense of justice of the court.

III

LIQUIDATED DAMAGES

“The FMLA provides that an employer ‘shall be liable’ for liquidated damages when it interferes with an employee's substantive rights under the Act. 29 U.S.C. § 2617(a)(1)(A).   Under the Act, liquidated damages are an amount equal to the compensation denied or lost to an employee, plus interest, by reason of the employer's violation of the statute.   Doubling of an award is the norm under the FMLA, because a plaintiff is awarded liquidated damages in addition to compensation lost ․ The deterrent of double damages found in the FMLA ․ prevents employers from gambling on their ability to evade providing coverage, and therefore, acts as insurance that employees will not be denied FMLA benefits ․

“A court may decline to impose liquidated damages only where the employer ‘proves to the satisfaction of the court that the act or omission which violated [S]ection 2615 was in good faith and that [it] had reasonable grounds for believing that the act or omission was not a violation.’  29 U.S.C. § 2617(a)(1)(A)(iii).   The employer must therefore show both good faith and reasonable grounds for the act or omission ․ Even if an employer can demonstrate that it falls under this exception, the [court's] discretion to reduce an award of liquidated damages must be exercised consistently with the strong presumption under the statute in favor of doubling.”  (Citations omitted;  internal quotation marks omitted.)  Persky v. Cendant Corp., 547 F.Sup.2d 152, 156, (D.Conn.2008).

“To establish ‘good faith,’ a defendant must produce plain and substantial evidence of at least an honest intention to ascertain what the Act requires and to comply with it ․ ‘Good faith’ in this context requires more than ignorance of the prevailing law or uncertainty about its development.   It requires that an employer first take active steps to ascertain the dictates of [the law] and then move to comply with them ․ In addition, the reasonableness requirement imposes an objective standard by which to judge the employer's conduct.”   (Citations omitted;  internal quotation marks omitted.)  Id., 157.  “[T]he employer bears the burden of establishing both subjective good faith and objective reasonableness ․ This burden is a difficult one to meet ․ and double damages are the norm, single damages the exception ․ Even assuming that [the employer] acted in good faith the decision to award liquidated damages is still within the discretion of the trial court.” ¹⁵  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id.

The plaintiff argues that the defendant did not prove good faith or reasonable grounds for termination of his employment.   The defendant counters that it showed an honest intention to ascertain what the FMLA requires and it fully complied with those requirements.   Specifically, the defendant argues that it did not terminate the plaintiff until three and one-half weeks after he had exhausted his FMLA leave, and that his termination was part of a planned reduction in force, a legitimate nondiscriminatory business reason, for cost savings.

The defendant's argument is unpersuasive and not supported by the evidence.   Beauchemin testified that he was familiar with the FMLA and the necessary requirements, including the right of a person taking FMLA leave to return to a comparable position.   Beauchemin further testified at his deposition, as corroborated by Devanney's testimony at trial, that the decision to terminate the plaintiff and hire a third-party IT firm occurred sometime between June 2009 and September 2009, while the plaintiff was on his FMLA leave.   The IT firm hired to replace the plaintiff was the firm selected by the plaintiff to cover for him while he was on FMLA leave.   On the day the plaintiff, an at-will-employee, was terminated, the defendant requested that the plaintiff sign a severance agreement providing for eight weeks of severance pay and health insurance until the end of the year in exchange for a waiver and general release, including a release of any claim he might have under the FMLA. The agreement also contained an acknowledgment that the defendant did not violate any laws.   However, Beauchemin also testified that another employee included in the defendant's planned reduction in force was given only two weeks severance, approximately one month of health insurance with no release of liability required.

Based on all the evidence, the court finds that the defendant has failed to meet its burden of proving that its violations of the FMLA were committed either in good faith or that it had objectively reasonable grounds for believing that its actions were not in violation of the FMLA. Therefore, the plaintiff is entitled to liquidated damages for the defendant's violation of the FMLA in an amount equal to the economic damage award plus interest at the prevailing rate in accordance with § 2617(a)(1)(A)(ii).   The court notes that the question of the interest rate is the subject of a separate motion, which also includes questions of attorneys fees, costs, punitive damages and front pay.¹⁶  That motion, and the defendant's response thereto will be addressed at a hearing to be scheduled by counsel with the Hartford caseflow office within thirty (days) of this decision.

CONCLUSION

For all of the foregoing reasons, the motion for judgment notwithstanding the verdict and the motion to set aside the verdict are hereby denied;  the court hereby orders that the verdict be reduced from $103,000 to $102,997.21;  and the motion for liquidated damages is hereby granted.

Peck, J.

FOOTNOTES

FN1. The defendant filed a motion for judgment notwithstanding the verdict (# 174);  a motion to set aside the verdict (# 175), and a motion for remittitur (# 177)..  FN1. The defendant filed a motion for judgment notwithstanding the verdict (# 174);  a motion to set aside the verdict (# 175), and a motion for remittitur (# 177).

FN2. On July 29, 2013, the plaintiff filed a motion for an award of attorneys fees, costs, interest, punitive damages and front pay.   At oral argument, the parties agreed to defer addressing this motion until the other post-trial issues were resolved..  FN2. On July 29, 2013, the plaintiff filed a motion for an award of attorneys fees, costs, interest, punitive damages and front pay.   At oral argument, the parties agreed to defer addressing this motion until the other post-trial issues were resolved.

FN3. Although the defendant has denominated the later motion as a “Motion to Set Aside the Verdict and for A New Trial,” it has not set forth distinct grounds or a separate argument for a motion for a new trial.   Therefore, the court does not separately address such a motion.   Further, although the defendant also seeks to revisit its argument based on the Fourth Special Defense to the effect that the stipulation and award approved by the Workers' Compensation Commission constituted a release of the plaintiff's then pending § 31–290a claim, the court declines to further address this issue as it was exhaustively raised and argued by the defendant and rejected by the court in the course of the trial..  FN3. Although the defendant has denominated the later motion as a “Motion to Set Aside the Verdict and for A New Trial,” it has not set forth distinct grounds or a separate argument for a motion for a new trial.   Therefore, the court does not separately address such a motion.   Further, although the defendant also seeks to revisit its argument based on the Fourth Special Defense to the effect that the stipulation and award approved by the Workers' Compensation Commission constituted a release of the plaintiff's then pending § 31–290a claim, the court declines to further address this issue as it was exhaustively raised and argued by the defendant and rejected by the court in the course of the trial.

FN4. 29 U.S.C. § 2615(a)(2)..  FN4. 29 U.S.C. § 2615(a)(2).

FN5. “We ․ find persuasive the burden-shifting analysis used by the majority of federal courts because this analysis is consistent with the regulations implementing FMLA and the [Connecticut] leave statute ․” Cendant Corp. v. Commissioner of Labor, supra, 276 Conn. 33..  FN5. “We ․ find persuasive the burden-shifting analysis used by the majority of federal courts because this analysis is consistent with the regulations implementing FMLA and the [Connecticut] leave statute ․” Cendant Corp. v. Commissioner of Labor, supra, 276 Conn. 33.

FN6. Pursuant to Cendant Corp. v. Commissioner of Labor, supra, 276 Conn. 34–35, the ultimate burden of proof was on the defendant to show that the plaintiff would not have been employed at the time he sought reinstatement.   In the present case, the defendant took the position that the plaintiff was reinstated and sought and received a jury instruction on the FMLA interference claim that “it provided the plaintiff all the rights and benefits to which he was entitled under the FMLA.”.  FN6. Pursuant to Cendant Corp. v. Commissioner of Labor, supra, 276 Conn. 34–35, the ultimate burden of proof was on the defendant to show that the plaintiff would not have been employed at the time he sought reinstatement.   In the present case, the defendant took the position that the plaintiff was reinstated and sought and received a jury instruction on the FMLA interference claim that “it provided the plaintiff all the rights and benefits to which he was entitled under the FMLA.”

FN7. In fact, the president of Highland Park Market, Timothy J. Devanney, testified on cross examination as follows:Q: So but for [the plaintiff's] leave, he would have never been let go;  isn't that true?A: Right..  FN7. In fact, the president of Highland Park Market, Timothy J. Devanney, testified on cross examination as follows:Q: So but for [the plaintiff's] leave, he would have never been let go;  isn't that true?A: Right.

FN8. “The handful of courts that have had the occasion to consider the impact of Nassar on FMLA retaliation claims have generally avoided answering the question, with none concluding that Nassar changed the causation standard for FMLA retaliation claims.   See Ion v. Chevron USA, Inc., 731 F.3d 379, [390 n.11 (5th Cir.2013) ] (concluding genuine issue of material fact existed regardless of which standard ․ to be applied);  Chaney v. Eberspaecher North America, United States District Court, Case No. 12–13023 (E.D.Mich. July 8, 2013) (stating ‘the Nassar decision, while informative, did not change any applicable standards [in FMLA cases]’);  see also Ford v. Berry Plastics Corp., [United States District Court, Civil Action No. RDB–12–0977 (D.Md. September 27, 2013) ] (noting that even if Nassar applied to FMLA claims, a plaintiff at the summary judgment stage is ‘not required to conclusively establish the causal connection required to ultimately prevail.’).”  Chase v. U.S. Postal Service, United States, District Court, Docket No. 12–11182(DPW) (D.Mass. November 4, 2013).   In addition, the Second Circuit courts that have confronted this question to date are divided as to whether the causation standard articulated in Nassar should be applied.   See Slade v. Alfred University, United States District Court, Docket No. 11–CV–396 (W.D.N.Y. November 19, 2013) (applying Nassar to FMLA retaliation);  but see Stoler v. Institute for Integrative Nutrition, United States District Court, Docket No. 13 Civ. 1275 (S.D.N.Y. November 18, 2013) (applying Nassar to Title VII, but not applying Nassar to FMLA retaliation)..  FN8. “The handful of courts that have had the occasion to consider the impact of Nassar on FMLA retaliation claims have generally avoided answering the question, with none concluding that Nassar changed the causation standard for FMLA retaliation claims.   See Ion v. Chevron USA, Inc., 731 F.3d 379, [390 n.11 (5th Cir.2013) ] (concluding genuine issue of material fact existed regardless of which standard ․ to be applied);  Chaney v. Eberspaecher North America, United States District Court, Case No. 12–13023 (E.D.Mich. July 8, 2013) (stating ‘the Nassar decision, while informative, did not change any applicable standards [in FMLA cases]’);  see also Ford v. Berry Plastics Corp., [United States District Court, Civil Action No. RDB–12–0977 (D.Md. September 27, 2013) ] (noting that even if Nassar applied to FMLA claims, a plaintiff at the summary judgment stage is ‘not required to conclusively establish the causal connection required to ultimately prevail.’).”  Chase v. U.S. Postal Service, United States, District Court, Docket No. 12–11182(DPW) (D.Mass. November 4, 2013).   In addition, the Second Circuit courts that have confronted this question to date are divided as to whether the causation standard articulated in Nassar should be applied.   See Slade v. Alfred University, United States District Court, Docket No. 11–CV–396 (W.D.N.Y. November 19, 2013) (applying Nassar to FMLA retaliation);  but see Stoler v. Institute for Integrative Nutrition, United States District Court, Docket No. 13 Civ. 1275 (S.D.N.Y. November 18, 2013) (applying Nassar to Title VII, but not applying Nassar to FMLA retaliation).

FN9. See Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980);  Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981)..  FN9. See Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980);  Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981).

FN10. In addition, Beauchemin testified that although the FMLA only requires twelve weeks of leave, it was the custom of Highland Park Market to allow more leave if necessary.   See transcript, 7/16/13, 88:15–27;  89:1–15.   In fact, Beauchemin acknowledged that, upon the plaintiff's return to work on September 21, 2009, he continued to track the plaintiff's part-time, four-hour-per-day schedule as FMLA leave.  Id., 24–27..  FN10. In addition, Beauchemin testified that although the FMLA only requires twelve weeks of leave, it was the custom of Highland Park Market to allow more leave if necessary.   See transcript, 7/16/13, 88:15–27;  89:1–15.   In fact, Beauchemin acknowledged that, upon the plaintiff's return to work on September 21, 2009, he continued to track the plaintiff's part-time, four-hour-per-day schedule as FMLA leave.  Id., 24–27.

FN11. This award was based on the calculations set forth in plaintiff's exhibit 65, the medical notes of Dr. Krompinger (plaintiff's exhibits 45 and 36), and the testimony of the plaintiff.   However, because the jury rounded up the number to $103,000 by adding $2.79, this number is not based on the evidence presented.   Accordingly, the court has reduced the jury award as to economic damages to $102,997.21, which amount is supported by the foregoing evidence..  FN11. This award was based on the calculations set forth in plaintiff's exhibit 65, the medical notes of Dr. Krompinger (plaintiff's exhibits 45 and 36), and the testimony of the plaintiff.   However, because the jury rounded up the number to $103,000 by adding $2.79, this number is not based on the evidence presented.   Accordingly, the court has reduced the jury award as to economic damages to $102,997.21, which amount is supported by the foregoing evidence.

FN12. See plaintiff's exhibit 45..  FN12. See plaintiff's exhibit 45.

FN13. See transcript 7/11/13, 67:21 and plaintiff's exhibit 46.   The transcript for 7/11/13, 66:27 also reflects that plaintiff exhibit 46 was allowed as a full exhibit on that date.   Although the list of exhibits reflected that this was for ID only, that marking per the transcript is incorrect and has been ordered corrected by the undersigned..  FN13. See transcript 7/11/13, 67:21 and plaintiff's exhibit 46.   The transcript for 7/11/13, 66:27 also reflects that plaintiff exhibit 46 was allowed as a full exhibit on that date.   Although the list of exhibits reflected that this was for ID only, that marking per the transcript is incorrect and has been ordered corrected by the undersigned.

FN14. See footnote 11..  FN14. See footnote 11.

FN15. “[B]ecause the [FMLA] provision mirrors the liquidated damages provision under the Fair Labor Standards Act (FLSA), courts considering liquidated damages under FMLA have looked at cases under the FLSA.” (Footnote omitted;  internal quotation marks omitted.)  Persky v. Cendant Corp., supra, 547 F.Sup.2d 156..  FN15. “[B]ecause the [FMLA] provision mirrors the liquidated damages provision under the Fair Labor Standards Act (FLSA), courts considering liquidated damages under FMLA have looked at cases under the FLSA.” (Footnote omitted;  internal quotation marks omitted.)  Persky v. Cendant Corp., supra, 547 F.Sup.2d 156.

FN16. See docket entry # 178..  FN16. See docket entry # 178.

Peck, A. Susan, J.