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Trump Judge Writes Majority Opinion Affirming Nullification of Jury Verdict that Corporation Improperly Fired Employee with MS Shortly After She Took FMLA Leave: Confirmed Judges, Confirmed Fears

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Trump Judge Writes Majority Opinion Affirming Nullification of Jury Verdict that Corporation Improperly Fired Employee with MS Shortly After She Took FMLA Leave: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Fourth Circuit Judge Julius Richardson penned a majority opinion affirming a lower court’s nullification of a jury verdict against a corporation for firing an employee who took sick  leave under the Family and Medical Leave Act (FMLA). The jury found that the employer had retaliated against the plaintiff for taking leave because of her multiple sclerosis (MS), a degenerative disease damaging the brain’s ability to communicate with the rest of the body, and awarded her $50,000. The July 2020 ruling was Fry v. Rand Construction Corp.

Arlene Fry served for eight years as an administrative assistant to Rand Construction Corporation’s Chief Executive Officer (CEO).  In the fall of 2016, the CEO  began to express problems with Fry’s job performance, including an incident of miscommunication that the CEO alleges almost caused her to miss a meeting with one of her most important clients. Fry took two weeks of leave under FMLA after seeing her doctor for MS in November. Shortly before taking leave, Fry received a $1,500 year-end bonus from the Rand CEO.

When she returned in December, Fry was briefly transferred to working as someone else’s administrative assistant. The CEO testified that she “showed up every day for work” through November 2016 but that after that her attendance became “unpredictable”. When Fry explained that she was on FMLA leave, the CEO responded “You were on a cruise. You were on a God damn cruise.”

Shortly after that, Fry received correspondence from the Chief Operating Officer (COO) on a “transition plan” which would conclude with Fry’s last day on June 30th, 2017. Fry complained that her FMLA rights were being violated and filed a second complaint in February 2017. The day after that, Fry was fired. Rand claimed that the firing was due to Fry’s performance, but the COO admitted that the February complaint was the “straw that broke the camel’s back.”

Fry sued, stating that her termination was a form of retaliation for taking leave protected by the FMLA, which also prohibits retaliation for complaining about unlawful practices under the Act. As part of her case, Fry sought to introduce evidence of a similar instance of a former RAND employee who alleged that she was terminated shortly after taking leave for surgery. While the trial judge did not allow this testimony, a jury awarded Fry  $50,000 in damages after a four-day trial. Despite the award, the trial court essentially reversed the jury verdict and granted Rand’s motion for judgment as a matter of law, claiming that Rand sufficiently provided legitimate reasons for terminating Fry.

On appeal, Judge Richardson wrote a 2-1 opinion affirming the lower court. He agreed that Fry had “failed to introduce sufficient evidence from which a reasonable jury could find Rand’s proffered reason was false and a pretext for retaliation.”

Judge Diana Gribbon Motz strongly dissented. Specifically, she noted that a district court’s role when it itself is the finder of fact “differs markedly” from its role, as in the present case, in deciding as a matter of law whether the jury verdict should be overturned. A district court can grant such a motion, “upending a jury verdict,” she continued, only if “viewing the evidence in a light most favorable to the non-moving party and drawing every legitimate inference in that party’s favor,” the “only conclusion a reasonable jury could have reached is one in favor” of the party that seeks to overturn the verdict.

Motz explained that the facts in the court below clearly did not meet this standard, which the Fourth Circuit has made clear is the law. While the facts at trial did not “compel” the jury’s verdict, Motz went on, they clearly provided a “sufficient basis” for the jury to determine that Fry’s firing was the “result of retaliation” and to award her damages.  As the Supreme Court has clearly held, Motz noted, the “weighing of evidence” and “drawing of legitimate inferences from the facts” are “jury functions, not those of a judge.” Motz concluded that the jury verdict should have been upheld, and that Richardson’s decision was wrong.

As a result of Judge Richardson’s opinion, however, Fry has lost the $50,000 in damages that the jury awarded her against Rand. In addition, those struggling with MS and other medical conditions in the 4th Circuit may have a much more difficult time upholding their rights.

Note: The initial draft of this blog post was prepared by PFAW legal intern Oliver Telusma.


Confirmed Judges Confirmed Fears, Family and Medical Leave Act, FMLA, Fourth Circuit Court of Appeals, Julius Richardson, Rand