MEMORANDUM OF DECISION
I. INTRODUCTION
In this action, Jo Anne Gourdeau (“Gourdeau”), employed by the Newton Police Department (the “Department”), brought suit against the City of Newton (the “City”, collectively, with the Department, the “Defendants”) and the Department for gender discrimination in violation of Massachusetts General Laws chapter 151B, section 4 (count I), retaliation for filing an internal gender discrimination complaint in violation of Massachusetts General Laws chapter 151B, section 4 (count II), and retaliation for use of protected family and medical leave in violation of the Family and Medical Leave Act (“FMLA” or the “Act”), 29 U.S.C. sections 2601-2619 (count III). After the Court granted summary judgment in favor of the City as to counts I and II, count III proceeded to trial. Following a three-day trial, the jury returned a verdict for the Defendants.
This straightforward narrative belies an important and difficult legal question that arose at the end of the trial. Before the case concluded, this Court consulted the parties about its plans to charge the jury to return a general verdict. Both parties objected, raising a dispute about the appropriate causation standard applicable in FMLA retaliation cases. Recognizing the uncertainty concerning the correct legal standard, this Court concluded that a general verdict would be inappropriate, and instead decided to charge the jury to return a special verdict under Federal Rule of Civil Procedure 49(a). This memoran-
A. Factual Background
The Department has employed Gour-deau since June 1, 1998. Statement Undisputed Facts Supp. Mot. Summ. J. Defs. (“Defs.’ Statement Facts”) ¶ 12, ECF No. 41; PL’s Concise Statement Material Facts R. (“PL’s Statement Facts”) ¶ 1, ECF No. 48. Initially hired as a patrol officer, Gour-deau has also occupied the positions of Traffic Officer (2004-2009) and Safety Officer (2009-2014). Defs.’ Statement Facts ¶ 17; PL’s Statement Facts ¶¶ 1-4. Between 2008 and 2012, Gourdeau took several days off for personal and family-related medical reasons. Defs,’ Statement Facts ¶ 14; PL’s Statement Facts ¶ 29.
On November 23, 2012, the Department created a temporary Traffic Officer specialist position. Defs.’ Statement Facts ¶ 30; PL’s Statement Facts ¶ 5. Four officers, including Gourdeau, applied for the position. Defs.’ Statement Facts ¶ 34; PL’s Statement Facts ¶ 9. The Department did not select Gourdeau for the new position. Defs.’ Statement Facts ¶41; PL’s Statement Facts ¶¶ 11-12.
After her non-selection, Gourdeau’s union filed a grievance alleging that the City had violated an existing Collective Bargaining Agreement by not selecting her as the temporary Traffic Officer due to her seniority. Defs.’ Statement Facts ¶¶ 46-48; PL’s Statement Facts ¶ 46; Ultimately, the grievance was settled and Gourdeau received $4,992 from the Department,
Gourdeau claims that she was a victim of retaliation for using FMLA-protected leave, as well as for complaining about not being selected for the temporary Traffic Officer position. PL’s Statement Facts ¶¶ 28, 33-35, Specifically, Gourdeau argues that the Department did not select her for the position in retaliation for taking FMLA-protected leave. Id. at ¶ 28.
B. Procedural History
Gourdeau initiated this action on October 23, 2013, in the Middlesex County Massachusetts Superior Court 'sitting in and for the County of Middlesex. Notice Removal, Ex. 3, Compl. and Jury Demand, ECF No. 1-3. The Defendants removed the case to this Court on November 8, 2013. Notice Removal, ECF No. 1.
On November 25, 2015, the Defendants filed a motion for summary judgment, Mot. Summ, J. Defs., ECF No. 37, along with, a supporting memorandum, Mem. Supp, Mot. Summ. J. Defs., ECF No. 38, and statement of facts, Defs.’ Statement Facts. On December 30, 2015, Gourdeau filed a memorandum opposing the Defendants’ motion for summary judgment, PL’s Mem. Opp’n Defs.’ Mot. Summ. J.,.ECF No. 49, along with a supporting statement of facts, PL’s Statement Facts. On January 11, 2016, the Defendants filed a .reply. Reply Br. Supp. Mot; Summ. J. Defs., ECF No. 52. Gourdeau. filed a sur-reply on January 15, 2016, PL’s Surreply Opp’n Defs.’ Mot. Summ. J. (Dkt. #37), ECF No. 54. Upon the report and recommendation by Magistrate Judge Cabell, Report and Recommendation Regarding Defs.’ Mot. Summ. J., ECF No. 61, District Judge Sorokin granted the Defendants’ motion for summary judgment as to counts I and • II and denied it with respect to count III. Electronic Clerk’s Notes, ECF No. 64.
A jury trial on the surviving claim commenced on December 6, 2016. Electronic
II. ANALYSIS
The Court here explains why it held that a general verdict was inappropriate in this case and opted instead to charge the jury to return a special verdict under Federal Rule of Civil Procedure 49(a). The Court then turns to addressing the appropriate causation standard applicable in FMLA retaliation cases.
A. Inappropriateness of a General Verdict
The jury charge is perhaps the greatest intellectual challenge facing a busy trial judge. “The trial judge is constantly required to be comprehensively brief, perhaps the most daunting oxymoron in the law. The judge must be understood by lay jurors while delineating complex legal norms with scrupulous accuracy. It is the most challenging law teaching of our time.” Collins v. Ex-Cell-O Corp.,
Although general verdicts are the norm, a district court “may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact.” Fed. R. Civ. P. 49(a)(1)
Here, as in most cases, the offering of evidence concluded during the morning, the charge conference was scheduled for that afternoon, and the jury was told to return on the morrow to hear closing arguments and receive their charge. During the charge conference, counsel diligently brought to the Court’s attention an existing uncertainty concerning the correct standard of causation (discussed below) applicable to FMLA retaliation cases. More important; this Court was caught short, realizing that it could not timely decide the correct causation standard to teach to the jury. This practical recognition made it clear that a general verdict would be inappropriate. Therefore, this Court charged the jury to return a special verdict. The alternative was to delay jury deliberations until this Court decided the issue of the appropriate causation standard for the case. This would cause burdensome delays and likely prevent this Court from examining this topic with the care justice requires. Such a result is unacceptable. Now, however, weeks following the jury trial and after rigorous study, a decent respect for the able argument of counsel compels consideration of this pending issue.
B. Causation Standard in FMLA Retaliation Cases
At first, this case appeared to present fairly straightforward legal issues. When the jury trial was proceeding to conclusion, however, an interesting and difficult legal question arose. Did Gourdeau carry the burden of proving that the Department had used her FMLA-protected sick leave only as a negative factor in reviewing her application for the temporary Traffic Officer position? Or did Gourdeau carry the heavier burden of proving that she would have gotten the temporary position but for her taking FMLA-protected leave? In other words, what is the legally required causation standard applicable in FMLA retaliation cases?
1. FMLA’s Background
Congress enacted the FMLA with two main purposes, namely “to balance the demands of the workplace with the needs of families” and “to entitle employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(1) & (2); Hodgens v. General Dynamics Corp.,
To protect these substantive rights, the FMLA makes it unlawful for any employer to retaliate against employees for invoking their substantive rights.
When, as in this case, an employee sues under a retaliation theory, the employer’s motive is key, and the specific issue becomes “whether the employer took the adverse action because of a prohibited reason or for a legitimate nondiscriminatory reason.” Hodgens,
Under the McDonnell Douglas framework, a plaintiff employee bears the initial burden of establishing a prima facie case of discrimination or retaliation.
To make out a prima facie case for retaliation, [the employee] must demonstrate that (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; [and] (3) there is a causal connection between the employee’s protected activity and the employer’s adverse employment action.
Hodgens,
Here, neither party disputes that Gour-deau took FMLA-protected leave and that there was an adverse employment action (the denial of the temporary position). Defs.’ Statement Facts ¶¶ 14, 41; Pl.’s Statement Facts ¶¶ 11-12, 29. The crucial question, then, is whether there is a causal connection between Gourdeau’s protected activity and the City’s adverse action.
Neither the Supreme Court nor the First Circuit has addressed the specific issue concerning the causation standard applicable to FMLA retaliation cases.
2. Supreme Court’s Employment Discrimination Jurisprudence
In addition to the absence of binding precedent on the appropriate causation standard applicable in FMLA retaliation cases, the Supreme Court’s recent workplace discrimination jurisprudence further muddies the waters. It may be helpful, therefore, to revisit that court’s relevant precedents on this issue.
In Price Waterhouse v. Hopkins, the Supreme Court held that an employee who alleges employment discrimination under Title VII could prevail if she showed that the motive to discriminate was one of the elements of the employer’s decision, even if the employer also had other, lawful motives.
In 1991, partially in response to Price Waterhouse, Congress altered Title VII to codify in part and abrogate in part the holding in that case. See Landgraf v. USI Film Prods.,
Considerable time passed before the Supreme Court returned to this topic. In 2009, the Supreme Court splitting 5-4 concluded that a plaintiff bringing a disparate-treatment claim under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, must prove, by a preponderance of the evidence, that but for the employer discriminating on the basis of age, the plaintiff would not have been subject to an adverse employment action. Gross v. FBL Fin. Servs., Inc.,
In 2013, the Supreme Court revisited this topic in Nassar,
3. FMLA’s Structure and Legislative History
The same argument can be made regarding the FMLA, which was enacted in 1993, just two years after the 1991 amendments to Title VII and the enactment of ADEA.
In fact, Congress explicitly modeled the FMLA’s retaliation provision after Title VII’s:
Section 105(a)(2) makes it unlawful for an employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this title. This “opposition” clause is derived from title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e-3(a)) and is intended to be construed in the same manner. Under title VII and -under section 105(a), an employee is protected against employer retaliation for opposing any practice that he or she reasonably believes to be a violation of this title.
H.R. Rep. No. 103-8(1), at 46 (1993). Accordingly, the First Circuit has analyzed FMLA and Title VII retaliation claims congruently. See Hodgens,
Therefore, the more appropriate construction of the statute based on the legislative history and statutory structure supports the conclusion that retaliation cases brought under the Act are subject to a but-for causation standard.
4. FMLA Textual Analysis
Textual interpretation of the Act also supports a but-for causation standard. This conclusion is anchored in the Supreme Court’s reasoning in Gross and Nassar, so it will be helpful to start there.
The ADEA, the relevant statute in Gross, states that “[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age[.]” 29 U.S.C. § 623(a)(1) (emphasis added). The majority in Gross concluded that the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of’ age is that age was the reason that the employer decided to act.
Title YII’s anti-retaliation provision, the relevant statute in Nassar, uses the same expression as the pertinent law in Gross. Section 2000e-3(a) of Title VII, like section 623(a)(1) under the ADEA, makes it unlawful for an employer to retaliate against an employee “because of’ certain criteria.
Applying this reasoning to the FMLA is slightly less straightforward, as the relevant provision of the statute uses the word “for” in lieu of the phrase “because of.” Compare 29 U.S.C. § 2615(a), with '29 U.S.C. § 623(a)(1), mid 42 U.S.C. § 2000e~ 3(a). This difference, however, is immaterial. The ordinary meaning of the word “for” is synonymous with “because of.” See For, Merriam-Webster, https://www.merriam-webster.com/dictionary/for (last visited Feb. 14, 2017) (listing “because of’ among definitions); For, Oxford English Dictionary, ' http://www.oed.com/view/Entry/ 72761?rskey=xWN6Kh&result=2#eid (last visited Feb. 14, 2017) (defining “for” as “[o]f the cause or reason” and “[because of, on account of’).
.Importantly, Supreme Court jurisprudence has never restricted but-for causation tests only to statutes using the term “because of.” Closely related terms such.as “results from,” Burrage v. United States, — U.S. -,
Consistent with this reading of the FMLA’s text, courts in other circuits have conflated the language in section 2615(a) with that of Title VII. See, e.g., Olson v. Penske Logistics, LLC,
The First Circuit has interpreted this language inconsistently. On various occasions, the First Circuit has interpreted section 2615(a) as requiring a plaintiff bringing a FMLA retaliation claim to show that “the employer took the adverse action because of a prohibited reason or for a legitimate nondiscriminatory reason.” Hodgens,
5. Public Policy
Two public policy considerations support a but-for causation standard. First, there is the “floodgate” argument. See, e.g„ Ellie Margolis, Closing the Floodgates: Making Persuasive Policy Arguments in Appellate Briefs, 62 Mont. L. Rev. 59, 73 (2001) (defining “‘floodgates of litigation’ argument” as one that “asserts that a proposed rule, if adopted, will inundate the court with lawsuits”). The Nassar majority expressed concern about the fact that “claims of retaliation are being made with ever-increasing frequency.” Nassar,
Whether the evidence supports this logic, however, demands further examination. On the one hand, the Supreme Court’s concern with the increasing number of retaliation claims seems prima facie warranted. From 1997 to 2016, the total number of retaliation charges filed with the Equal Employment Opportunity Commission (the “Commission”) grew steadily from 18,198 to 42,018, an increase of over 130% during the twenty-year period. Charge Statistics FY 1997 Through FY 2016, U.S. Equal
On the other hand, there seems to be no clear association between changes in the causation standard applicable in employment disputes and the number of charges filed. After Nassar was decided in 2013, the total number of Title VII retaliation claims filed with the Commission or in federal courts remained fairly stable—declining slightly from 31,208 in 2012 to 30,-771 in 2014. Id. As these numbers suggest, it is far from clear that “floodgate” concerns are justified.
A “floodgate” worry further recedes when viewed in light of the recent number of FMLA cases commenced in federal courts. While the number of FMLA claims has increased steadily, there was no marked explosion of filings post-Nassar. Between 2012 and 2016, federal courts witnessed a threefold increase in the number of federal FMLA cases' commenced, from 404 to 1,198 cases. Admin. Office of the U.S. Courts, Statistical Tables for the Federal Judiciary, Table C-2 (2012), available at http://www.uscourts.gov/statistics/table/ c-2/statistical-tables-federal-judiciary/2012/ 12/31; Admin. Office of the U.S. Courts, Statistical Tables for the Federal Judiciary, Table C-2 (2016), available at http:// www.uscourts.gov/statistics/table/c-2/ statistical-tables-federal-judiciary/2016/06/ 30 [hereinafter District Court Cases Filed June 2015 and 2016].
These figures suggest that courts should take floodgate arguments, at least with respect to retaliation claims, with a grain of salt. See, e.g., Marin K. Levy, Judging the Flood of Litigation, 80 U. Chi. L. Rev. 1007 (2013); Toby J. Stern, Federal Judges and Fearing the “Floodgates of Litigation”, 6 U. Pa. J. Const. L. 377 (2003).
The second, public policy consideration that supports a but-for causation standard for FMLA retaliation claims pertains to consistency in how courts and Congress have addressed the topic in other antidis-crimination statutes. Title VII, for instance, protects workers from “having opposed, complained of, or sought remedies for, unlawful workplace discrimination,” such as those motivated by “race, color, religion, sex, or national origin.” Nassar,
6. Other Courts’ Chevron Deference Approach to the Causation Standard
Notwithstanding the strong arguments in support of applying a but-for causation standard, a small number of courts have reached the opposite conclusion, namely that FMLA retaliation cases should be proven by a negative-factor standard. This was the analysis adopted in Chase v. U.S. Postal Serv.,
These courts assign controlling deference under Chevron U.S.A., Inc, v. Natural Resources Defense Council, Inc„
Chevron deference “is rooted in a background presumption of congressional
Another court within this District concluded that “the FMLA leaves ambiguous what causal standard governs in retaliation actions and that the Department of Labor has supplied one reasonable answer.” Chase,
As the discussion above makes clear, the Department of Labor’s regulation is an impermissible construction of the FMLA, based on the Act’s structure and text, as well as its legislative history. Moreover, the Department of Labor’s official comment on the FMLA fundamentally contradicts its “negative factor” regulation. See Jones,
III. CONCLUSION
For the preceding reasons, this Court held that a general verdict was inappropriate in this case and instead charged the jury to return a special verdict under Federal Rule of Civil Procedure 49(a). This Court now concludes that retaliation claims brought under the FMLA must be
Notes
. Although Gourdeau ultimately received the full $4,992, she never signed the settlement because she disputed the amount. PL’s Statement Facts ¶¶ 47-48.
. This Court posed the following three questions to the jury: 1) Did the City of Newton consider protected FMLA sick leave a "negative factor” when evaluating Jo Anne Gour-deau for the disputed position?; 2) Whatever your answer to question 1 alone, did the City of Newton select another officer for the disputed position for legitimate reasons?; and 3) After first subtracting the monetary value of the labor settlement, what additional compensation, if any, including stipend and overtime pay would Jo Anne Gourdeau have received had she been selected for the disputed position? Jury Verdict, The jury answered "no” to question 1 and "yes” to question 2. Id. Based on its negative answer to question 1, the jury did not proceed to answer question 3. Id.
. Federal Rule of Civil Procedure 49(a)(1) provides that:
The court may require a jury to return only a special verdict in the form of a special written finding on each issue of fact. The court may do so by:
(A) submitting written questions susceptible of a categorical or other brief answer;
(B) submitting written forms of the special findings that might properly be made under the pleadings and evidence; or
(C) using any other method that the court considers appropriate.
. Notably, the jury verdict ultimately rendered the causation standard issue moot, since the jury found that the City of Newton had not considered FMLA-protected sick leave as a negative factor when evaluating Gourdeau for the disputed position. Jury Verdict. In any case, this Court now takes the time to address this point in dicta to shed light on this difficult legal question.
. Although the text of section 2615(a) does not reference "retaliation” explicitly, the First Circuit consistently has recognized such a cause of action is present in the statute and its supporting regulation. See Colburn,
, Although this burden-shifting framework is most often used to evaluate cases during the pretrial stage, especially at summary judgment, it still “lurks in the background during trial.” Palmquist v, Shinseld,
. In Chase v. United States Post. Service,
. 42 U.S.C. §§ 2000e-2(m) provides that: “Except as otherwise provided in this sub-chapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”
. 42 U.S.C. §§ 2000e-5(g)(2)(B) provides that:
On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).
. While it is true that the majority in Gross warned that courts "must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination,” Gross,
. Title VII’s discriminatory practices provisions use the phrase "motivating factor.” 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B). In contrast, the FMLA’s regulations incorporate the term “negative factor.” 29 C.F.R. § 825.220(c). Courts, however, appear to use the terms interchangeably, suggesting that the two are synonymous. As such, this Court adopts that approach.
. 29 U.S.C, § 2000e-3(a) provides that:
It shall be an unlawful employment practice for an employer to discriminate against any of his-employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
(emphasis added).
. The significance of retaliation charges is also reflected at the state level. Retaliation charges under Title VII, FMLA, and other statutes, constituted 39.2% of all charges at the Commission’s Massachusetts office in 2016. FY 2009-2016 EEOC Charge Receipts for Massachusetts, Equal Emp’t Opportunity Comm’n, https://wwwl .eeoc.gov/eeoc/ statistics/enforcement/charges_by_state. cfm#centercol (last visited Feb. 14, 2017).
. The numbers also fail to paint a clear picture when examining Title VII disputes in federal courts. In 2011, 15,255 civil rights employment lawsuits were commenced, while in 2015 that number dropped to 11,876. Admin. Office of the U.S. Courts, Statistical Tables for the Federal Judiciary, Table C-2 (2011), available at http://www.uscourts.gov/ statistics/table/c-2/statistical-tables-federal-judiciary/2011/06/30; Admin. Office of the U.S. Courts, Statistical Tables for the Federal Judiciary, Table C-2 (2015), available at http://www.uscourts.gov/statistics/table/c-2/ statistical-tables-federal-judiciary/2015/12/31. Although these figures are consistent with the hypothesis that Nassar caused a decline in the number of Title VII retaliation cases, there are not enough data to confirm it. In particular, those statistics do not differentiate between discrimination and retaliation claims. See generally Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. Empirical Legal Stud. 429 (2004) (supplying an impressive richness of data to support the argument that at both pretrial and trial stages plaintiffs in federal employment discrimination litigation lose disproportionately).
.The caseload statistics data tables for the 12-month periods ending December 31, 2015 and 2016 are not yet available.
. Of course, 2013 was also the year the Supreme Court decided Nassar. Given that Nassar addressed Title VII claims and the confusion and uncertainty about whether its holding could, be extended to FMLA cases suggests a mere coincidence. Moreover, this increase in filed claims would be the exact opposite of the expected result of Nassar.
. Another, deeper, problem with a "floodgate” argument, as discussed in Nassar, is the reasoning that a lessened causation standard would increase the number of "frivolous” lawsuits,
. Commentators also read the FMLA as setting minimum labor standards, besides combating employment discrimination. See, e,g„ Sandra F. Sperino, Under Construction: Questioning Whether Statutory Construction Principles Justify Individual Liability Under the Family and Medical Leave Act, 71 Mo. L, Rev. 71, 73 (2006) ("Congress ascribed two different purposes to the [FMLA]. First, Congress indicated that the FMLA established a new minimum employment standard.... Second, the FMLA was designed as an anti-discrimination statute to alleviate gender discrimination in the workplace,...” (internal citations omitted)).
. In Nassar, the Supreme Court held that the Equal Employment Opportunity Commission's view that Title VII retaliation claims were subject to a motivating-factor causation standard was unpersuasive under Skidmore v. Swift & Co.,