SJC affirms award to employee fired for vacationing on FMLA leave

The Supreme Judicial Court has affirmed a $2 million judgment against a public agency that fired an employee who took a vacation to Mexico while out of work under the Family and Medical Leave Act to recover from surgery.

In Richard DaPrato v. Massachusetts Water Resources Authority, the SJC on June 5 affirmed a Suffolk Superior Court ruling that held the employer liable for retaliatory termination under the FMLA, the Americans with Disabilities Act, and the Massachusetts anti-discrimination statute (M.G.L. Ch. 151B).

The case has important implications for public sector managers.

DaPrato was an IT manager for the MWRA with positive performance evaluations and no disciplinary history during his 11 years. He initially requested FMLA leave for a knee operation, but then requested leave for more urgent foot surgery. The surgeon estimated DaPrato would need seven to eight weeks of leave and three to four additional weeks to recover.

The MWRA’s Human Resources Department approved DaPrato’s leave request and the continuation of his salary while on leave under a separate policy for managers.

During the fifth week of his recovery, DaPrato went on an annual family vacation to Mexico. After his return, the MWRA learned that DaPrato had travelled to Mexico, and the Human Resources director began an investigation.

The MWRA obtained videos of DaPrato walking, driving and lifting luggage at an MWRA facility during his leave, activities that the HR director believed were inconsistent with DaPrato’s medical condition. When senior management interviewed DaPrato, he said that his conduct was consistent with the limitations described in his FMLA forms. The MWRA concluded, however, that DaPrato misrepresented the disability for which he had taken FMLA leave and salary continuation. He was placed on administrative leave pending further review, then terminated.

At trial, the MWRA submitted photographs of DaPrato standing on a boat and holding up a large fish. MWRA senior management, however, did not have the photos when they decided to terminate DaPrato, which turned out to be central to the case.

The SJC noted, “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.”

The SJC found that the MWRA did not properly review DaPrato’s medical leave in determining whether he abused it. Taking a vacation while on FMLA leave may be permissible, or impermissible, depending on the circumstances of each case.

The SJC affirmed the lower court’s award to DaPrato of roughly $2 million, including back pay, “front pay,” emotional distress, punitive damages, liquidated damages, attorney costs and interest.

The SJC decision instructs managers, when determining whether an employee has abused FMLA leave, to carefully consider the reasons an employee requests medical leave, the actions an employee undertakes while on leave, and the timeline for rehabilitation and recovery. Moreover, managers cannot consider the fact that an employee takes FMLA leave as a negative factor in employment actions such as hiring, promotions or discipline.