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Nurse Collects $500,000 after Employer Violates Employee Leave Act

Connecticut Law Tribune recognizes Attorney Thomas Bucci's succcess

Reprinted with permission from The Connecticut Law Tribune

By MEGAN SPICER , The Connecticut Law Tribune

December 2, 2015   

A nurse has been awarded more than $500,000 after a federal court jury found that her former employee violated the Family and Medical Leave Act. The woman's lawyer called the case unusual in that his client was seeking several years of back pay rather than just three or four months' worth.

It was also unusual because a judge recently reduced the jury's initial award, ruling that jurors failed to take into account the nurse's income that didn't come from the defendant. The jury had initially awarded $400,000 for back salary alone. After Senior U.S. District Judge described that amount as "excessive," he gave plaintiff, Connie Sue Summerlin, the choice of opting for a smaller verdict or a new trial.

Summerlin chose the smaller verdict. The court awarded her nearly $196,000 in back wages, which was doubled under the provision of the federal leave law. Including attorney fees and other costs, the total award came to $502,400.

Summerlin's attorney, Thomas Bucci of Willinger, Willinger & Bucci in Bridgeport, said he was not surprised the verdict was reduced. He added that Summerlin is "very pleased with the outcome of the trial."

Summerlin, a Brookfield resident, began working as a nurse for Almost Family, which provides home nursing and rehabilitation services, in October 2006. By April 2010, she was a registered nurse case manager, meaning she performed supervisory work as well as treating patients. That month, she fell on ice outside a patient's home and injured her hip, an injury that she later aggravated at another patient's home.

Unable to work, she took family leave in July 2010. Under the act, employees can take up to 12 weeks off in the event of injury, the birth of a baby or an illness of a close relative. They are not paid for the time off, but continue to receive benefits from the employer. Additionally, the company is supposed to give them their job back—or provide a similar position—whenever they are able to return to work.

It wasn't until February 2011 that Summerlin received permission from her doctor to return to work. When she contacted the director of Almost Family's Danbury office to ask about resuming work as a registered nurse case manager, she was told her job had been eliminated in August 2010. Instead, Almost Family offered Summerlin a per diem nursing position. The company later said Summerlin ended up declining some assignments that would have required extensive travel; Summerlin denied that allegation.

In the meantime, Summerlin applied to five different jobs with Almost Family, all of which she was qualified for, she said in her 2012 lawsuit. But she was hired for none of them. Summerlin claimed she was being retaliated against for taking family leave and filed her lawsuit.

In its defense, Almost Family argued that Summerlin did not qualify for some of the positions, such as a behavioral health case manager, because she allegedly had no interest in seeing medical patients. They also argued that Summerlin presented no evidence that would prove she was not rehired by Almost Family because of her FMLA leave.

However, during the trial, which lasted four days this past April, the plaintiff's lawyer convinced the jury that Summerlin was qualified for the jobs for which she applied. After the jury ruled in Summerlin's favor, it set about computing damages. By the court's count, she was owed wages for 1,514 days -- ranging from the day she was ready to resume working to the day the verdict was rendered.

That number of days amounts to 4.15 years. And so the jury multiplied Summerlin's annual income of $111,531 by 4.15 years. That came to about $462,000. If that verdict would have stood, Summerlin would have stood to collect nearly $1 million once the damages were doubled under the FMLA and attorney costs were added.

But Almost Family filed a motion arguing that the jury did not take into account the additional money Summerlin earned working for two other employers after she recovered from her injury. Judge Egington agreed that amount should have been subtracted from the verdict, and he came up with the $196,000 number that Summerlin ultimately accepted.

Almost Family, which operates in 14 states, is represented by Risa Boerner of Fisher & Phillips in Pennsylvania. "The company does not comment on pending legal matters," said Boerner. "That being said, the company believes it acted in accordance with applicable laws and is considering its appeal options."


 

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