THERESA R. SUCO v. LOVING CARE AGENCY, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THERESA R. SUCO,

Plaintiff-Appellant/

Cross-Respondent,

v.

LOVING CARE AGENCY, INC.,

Defendant-Respondent/

Cross-Appellant,

and

CAROL ANN JOHNSON,

Defendant.

_________________________________

November 1, 2016

Submitted October 17, 2016 Decided

Before Judges Sabatino, Nugent and Haas.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-170-12.

Law Offices of Louis A. Zayas, attorneys for appellant/cross-respondent (Louis A. Zayas and Alex Lee, on the briefs).

Buchanan Ingersoll & Rooney, PC, attorneys for respondent/cross-appellant (Christopher J. Dalton and Daniel Z. Rivlin, of counsel and on the brief).

PER CURIAM

Following a seven-day trial, a jury returned a verdict in this employment discrimination case in favor of plaintiff Theresa Suco. The jury concluded that plaintiff's employer, defendant Loving Care Agency, Inc.,1 discriminated and unlawfully retaliated against plaintiff in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. As we will discuss in greater detail below, the jury rendered two inconsistent verdicts as to plaintiff's back pay damages, which prompted the trial judge to mold the jury's verdicts and award plaintiff $47,950 in back pay.2

Plaintiff thereafter filed a motion to "alter and amend the judgment" or, in the alternative, for a new trial on back pay damages. Plaintiff also challenged the trial judge's dismissal of her claim for punitive damages. Defendant opposed this motion and filed a motion for a judgment in its favor notwithstanding the verdict. Following oral argument, the judge denied both motions in two separate orders issued on May 23, 2014. On June 23, 2014, the judge granted plaintiff's motion for attorney's fees and costs and awarded her $76,057.85.

Plaintiff appeals from the trial judge's May 23, 2014 order denying her application for a new trial on the issue of back pay damages. She also challenges the June 23, 2014 order on attorney's fees and costs, and asserts the judge should have awarded her an additional $85,189.20. Defendant has filed a cross-appeal from the May 23, 2014 order denying its motion for judgment notwithstanding the verdict.

Having reviewed the parties' contentions in light of the record and the applicable law, we affirm in part, reverse in part, and remand for further proceedings.

I.

We summarize the relevant facts developed during the trial. Defendant provides home health care services to its clients. Plaintiff is a registered nurse with over thirty years of experience. It is undisputed that plaintiff has a medical disability known as Chronic Obstructive Pulmonary Disease ("COPD"), which impairs her breathing.

In June 2009, defendant hired plaintiff as a clinical manager for its West New York branch office, which was near plaintiff's home. In this position, plaintiff reviewed paperwork submitted by field nurses to ensure the documentation complied with federal, state, and private insurance requirements.

At the time of her hire, plaintiff's supervisor, Carol Johnson, informed plaintiff she would also have to work from defendant's Jersey City office several days each week. However, the clinical manager in that office soon resigned and defendant assigned plaintiff to the Jersey City office "pretty much every day." Plaintiff complained to Johnson and Claudia Duque, the office manager for the West New York office, that the "extensive travel" from her home to Jersey City aggravated her COPD. Plaintiff also asserted that the office manager in the Jersey City office smoked, which also adversely affected her health. In their testimony, Johnson and Duque denied there was a problem with smoking at the Jersey City branch, but each conceded the office was dirty and that "odors just permeated the place."

In October 2009, plaintiff went to her family physician, Dr. Gilberto Gastell, for treatment for her COPD. At that time, plaintiff asked defendant if she could reduce her hours from forty to thirty hours per week.3 Defendant agreed.

In December 2009, Dr. Gastell recommended that plaintiff take a disability leave because the long commute to Jersey City and the smoky condition of that office were affecting her breathing. Plaintiff alleged that after she went on leave, Johnson called her and said, "Do you realize the position you've put us in?" Plaintiff stated that Johnson was angry because there would be no one to cover the Jersey City office. Johnson conceded she was upset when she learned plaintiff was taking disability leave, but denied ever calling plaintiff to tell her this.

On December 17, 2009, Dr. Gastell gave plaintiff a note stating she could return to work on January 6, 2010. On December 23, 2009, Dr. Gastell filled out a temporary disability form for plaintiff, again indicating a January 6, 2010 return date. Plaintiff testified she asked the doctor if he could change the return date to January 11, 2010, and he agreed to do so.

However, when plaintiff returned to pick up the amended form, it still stated that her return date was January 6, 2010. Plaintiff advised Dr. Gastell's receptionist of the mistake, and the receptionist then gave her a sealed envelope to give to her employer. Plaintiff submitted the envelope to the West New York office.

Thereafter, the Human Resources ("HR") representative at the West New York office, Nathalia Desjardins, called plaintiff and told her the date on the form had been "whited out" and changed to January 11. Plaintiff explained what had happened and Desjardins told her that Dr. Gastell needed to complete a new form. On January 5, 2010, Dr. Gastell gave plaintiff another note extending her disability leave to February 15, 2010 and plaintiff faxed it to Desjardins. Plaintiff never heard from Desjardins again.

Instead, Desjardins sent an email to Johnson and Duque, asserting that plaintiff told her that she had changed the return date on the disability leave form "to the 11th without prior approval from her doctor." Desjardins forwarded this email to Joann Pern, the HR manager at defendant's headquarters. Pern testified she called Dr. Gastell's office and was advised the return to work date in their file was January 6, 2010.

On January 7, 2010, Pern called plaintiff and told her she was terminated from employment because she had "falsified the forms for obtaining [d]isability." Pern did not permit plaintiff to provide an explanation. After her termination, however, plaintiff met with Johnson and Duque and gave them a letter from Dr. Gastell explaining what had occurred. In spite of this, defendant refused to restore plaintiff's job. Plaintiff also testified Duque told her that Johnson advised Pern to fire her.

Dr. Gastell's medical assistant testified that she altered the original disability leave form with white out at Dr. Gastell's request. The assistant also stated that no representative of defendant ever contacted her personally to ask about the form. In a deposition that was read into the record at trial, Dr. Gastell testified that his office was responsible for changing the leave form.

When plaintiff's disability benefits ended in June 2010, she applied for unemployment compensation benefits. Plaintiff testified defendant sent the claims examiner a letter stating that plaintiff voluntarily left her job. Later, defendant told a hearing officer that plaintiff falsified the disability leave form. Plaintiff stated that defendant eventually conceded that she did not alter the form or leave work on her own volition, and she thereafter received unemployment compensation benefits.

In January 2012, plaintiff filed a complaint against defendant for wrongful termination under the LAD alleging, among other things, wrongful discharge based on her disability, and unlawful retaliation. Plaintiff sought compensatory damages, punitive damages, and attorney's fees and costs.

The trial judge denied defendant's motion for a directed verdict at the end of plaintiff's case and again at the end of the trial. The judge also dismissed plaintiff's claim for punitive damages before submitting the case to the jury.

On April 8, 2014, the jury returned a liability verdict in plaintiff's favor, finding that defendant terminated her employment based on her disability and in retaliation for requesting an accommodation for her disability. With respect to damages, the jury issued an award of $200,000 for back pay,4 "minus disability[,] unemployment[,] [and] federal/state taxes."5 In addition, the jury awarded plaintiff another $30,000 in damages for emotional distress.

Because the proposed deductions in the jury's verdict concerning back pay and taxes were not quantified, the trial judge required the jurors to return to court the following day. In the meantime, counsel for both parties stipulated that, after her discharge, plaintiff received $60,000 in unemployment compensation benefits and $25,000 in disability benefits. The parties also agreed that plaintiff's respective Federal and New Jersey State tax rates were 28% and 5.525%.

On April 9, 2014, the judge provided this information to the jury, and issued a supplemental instruction asking that the jury respond to the following question: "'What amount of damages, if any, do you award the [p]laintiff on her claim for back pay?'" The jury returned later that day with a back pay verdict of $301,708.75, which was almost $102,000 higher than its original award. The judge did not request any explanation for this discrepancy and dismissed the jury.

Later that same day, the judge attempted to mold the jury's original $200,000 verdict by subtracting the $85,000 plaintiff received in unemployment compensation and disability benefits, together with $67,050 in Federal and State income taxes she would have paid on the initial verdict. This yielded a net back pay award of $47,950, to which the judge added the $30,000 emotional distress award, for a total of $77,950.

As stated above, the judge later denied plaintiff's motions seeking a new trial on back pay damages and additional attorney's fees and costs. The judge also denied defendant's motion for a judgment notwithstanding the verdict. This appeal and cross-appeal followed.

II.

In her appeal, plaintiff challenges the trial judge's: (1) decision to mold the back pay damages award; (2) refusal to instruct the jury on punitive damages; and (3) reduction of the attorney's fees and costs she sought. However, we begin with a discussion of defendant's cross-appeal. Defendant argues there was no liability shown as a matter of law and, therefore, the judge should have granted its motion for a judgment notwithstanding the verdict. We disagree.

It is well recognized that jury trials are a bedrock part of our system of civil justice and that the fact-finding functions of a jury deserve a high degree of respect and judicial deference. See, e.g., Caldwell v. Haynes, 136 N.J. 422, 432 (1994). In terms of its assessment of the relative strength of the proofs, a jury verdict is "impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice." Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)).

On appellate review of a trial court's denial of a motion for a judgment notwithstanding the verdict, we "must accept as true all evidence supporting the position of the party defending against the motion and must accord that party the benefit of all legitimate inferences which can be deduced [from the evidence]." Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 572 (2010) (alteration in original) (quoting Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). A motion for judgment notwithstanding the verdict must be denied if reasonable minds could differ regarding the outcome. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). In our view, and in light of that deferential standard of review, there was sufficient evidence here for the jury to conclude that defendant wrongfully discharged plaintiff in violation of the LAD.

The LAD prohibits discriminatory employment practices. Viscik v. Fowler Equip. Co., Inc., 173 N.J.1, 13 (2002). To prove employment discrimination under the LAD, New Jersey courts have adopted the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973); Viscik, supra, 173 N.J. at 13-14. Under that analysis, the plaintiff must first present sufficient evidence to establish a prima facie case of unlawful discrimination. Dixon v. Rutgers, 110 N.J. 432, 442 (1988) (citing McDonnell Douglas Corp., supra, 411 U.S. at 807, 93 S. Ct. at 1826, 36 L. Ed. 2d at 680); Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 82-83 (1978)). The defendant then has the burden to present evidence establishing a legitimate, non-discriminatory reason for its employment action. Dixon, supra, 110 N.J. at 442 (citing Peper, supra, 77 N.J. at 83). If the defendant presents such evidence, the burden shifts back to plaintiff to prove that the defendant's proffered reasons are merely a pretext for unlawful discrimination. Ibid. (citing Peper, supra, 77 N.J. at 83).

Defendant concedes that plaintiff has COPD, which is clearly a medical disability under the LAD. See N.J.S.A. 10:5-5(q) (defining "[d]isability" as any "physical disability . . . which prevents the normal exercise of any bodily . . . functions[.]"). Despite this disability, Johnson and Duque confirmed that plaintiff was qualified to perform her duties. Yet, shortly after she reduced her work hours, and then went out on disability leave, defendant terminated her. Plaintiff testified Johnson was angry because plaintiff left the Jersey City office unstaffed. Thus, there is ample evidence in the record to support plaintiff's claim of unlawful discrimination and retaliation.

Moving to the second prong of McDonnell Douglas, defendant contends it had a legitimate, non-discriminatory reason for terminating plaintiff's employment based on its receipt of the altered disability leave form. However, reasonable minds could clearly differ whether that was the case. Pern terminated plaintiff's employment shortly after she submitted the leave form and did not permit plaintiff to explain what had happened. Plaintiff later met with Johnson and Duque and presented a letter from Dr. Gastell corroborating the fact that the form was altered by his office rather than by plaintiff. Yet, defendant refused to permit plaintiff to return to work, even though Pern, Johnson, and Duque would later testify that plaintiff's termination left the Jersey City office without a clinical manager. Thus, a jury could reasonably conclude that defendant did not have a legitimate reason for terminating plaintiff.

However, even if the jury concluded that defendant met its burden of demonstrating a legitimate reason for its action, plaintiff presented sufficient proof of pretext under the third prong of McDonnell Douglas to support the jury's finding of liability for discrimination under the LAD. As noted above, defendant was aware that plaintiff denied altering the leave form, and that Dr. Gastell corroborated her claim. The record also reflects that Johnson was angry because she had taken the leave, and Johnson conceded she was upset with plaintiff. Although Pern claimed Johnson had no role in defendant's decision to terminate plaintiff's employment, Duque told plaintiff that Johnson advised Pern to fire her. Thus, a jury could reasonably conclude that defendant's asserted reason for terminating plaintiff was a pretext for discrimination.

Under these circumstances, we discern no basis for concluding that the jury's verdict represents "a plain miscarriage of justice." Doe, supra, 360 N.J. Super. at 503. Therefore, we affirm the trial judge's May 23, 2014 order denying defendant's motion for judgment notwithstanding the verdict.

III.

Turning to the arguments raised in plaintiff's appeal, we first address her contention that the trial judge erred by dismissing her claim for punitive damages. Under Rule 4:37-2(b), a defendant may move for involuntary dismissal of a plaintiff's claims "on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." The test for involuntary dismissal under the rule is "whether 'the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor of the party opposing the motion[.]'" Dolson, supra, 55 N.J. at 5 (alteration in original) (quoting Bozza v. Vornado, Inc., 42 N.J. 355 (1964)).

On appeal, "we apply the same standard as the trial court[.]" Bennett v. Lugo, 368 N.J. Super. 466, 479 (App. Div.), certif. denied, 180 N.J. 457 (2004). We do not give any special deference to the legal conclusions of the trial court. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).

Applying these principles, we perceive no error in the trial judge's decision to dismiss plaintiff's punitive damages claim. To be entitled to punitive damages against an employer in a LAD employment discrimination case, the plaintiff must prove by clear and convincing evidence that the defendant's conduct was malicious or that the defendant acted in wanton and willful disregard of plaintiff's rights. Rendine v. Pantzer, 141 N.J. 292, 314 (1995); N.J.S.A. 2A:15-5.12(a); see also Model Jury Charge (Civil), 8.61, "Punitive Damages-Law Against Discrimination (LAD) Claims" (April 2014). The plaintiff must also establish "(1) 'actual participation in or willful indifference to wrongful conduct on the part of upper management'; and (2) 'proof that the offending conduct [is] especially egregious.'" Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 113 (1999) (alteration in original) (quoting Rendine, supra, 141 N.J. at 314).

In dismissing plaintiff's claim for punitive damages, the trial judge stated he could not find "as a matter of law that . . . plaintiff [would be] able to establish by clear and convincing evidence the higher standard of proof that there [was] especially egregious conduct [to constitute] actual malice." We agree with the judge's assessment. As discussed above, the evidence in this case demonstrated that a jury could conclude defendant acted precipitously in reaction to the white-out on the disability leave form and may have been motivated by an underlying desire to get rid of a complaining employee.

However, punitive damages are reserved for the most severe cases of misconduct. Giving defendant the benefit of every legitimate inference from the evidence produced at trial, the evidence did not demonstrate the outrageous course of conduct required for an award of punitive damages. If, in fact, plaintiff had submitted a fraudulent form by altering it herself after the doctor had signed the original, this lack of integrity could legitimately have justified discharge or other sanction. Under these circumstances, we cannot conclude that defendant's actions were "especially egregious." Rendine, supra, 141 N.J. at 314. Therefore, we affirm the trial judge's dismissal of plaintiff's punitive damages claim.

IV.

Plaintiff next argues that the trial judge should have granted her motion for a new trial because the judge did not properly instruct the jury on how to calculate back pay damages. We agree.

Rule 4:49-1(a) provides that a trial judge shall grant a new trial if, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." "It is axiomatic that clear and correct jury charges are essential to a fair trial . . . ." Henebema v. S. Jersey Transp. Auth., 430 N.J. Super. 485, 501 (App. Div. 2013) (quoting Das v. Thani, 171 N.J. 518, 527 (2002)), aff d, 209 N.J. 481 (2014). Jury charges must outline the jury's function, set forth the issues and the applicable law, and spell out how the jury should apply those legal principles to the facts as the jury finds them. Velazquez v. Portadin, 163 N.J. 677, 688 (2000).

Plaintiff did not object to the judge's instructions concerning back pay damages until after the jury rendered its verdicts. Thus, we analyze the issue employing the plain error standard. See R. 2:10-2. The question is whether the error "led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Prior to the jury's original verdict, the judge instructed the jury that any back pay award "should not be reduced by an[y] unemployment benefits or other unearned income that the [p]laintiff may have received." This instruction followed the express language of Model Jury Charge (Civil), 2.33, "Mitigation of Economic Damages-Back Pay" (April 2014). See Sporn v. Celebrity, Inc., 129 N.J. Super. 449, 457-60 (Law Div. 1974) (prohibiting the deduction of unemployment compensation benefits from wrongful discharge damages). Thus, the judge properly instructed the jury not to reduce any back pay award by the unemployment compensation and disability benefits plaintiff received because this was unearned income.

The judge also instructed the jury that

[a]ny award for lost earnings must be based on net or take home pay, not on gross income. This is because only take home pay, the amount left after taking out taxes, would have been received by the [p]laintiff and the amount that you award is not subject to any federal and New Jersey income taxes.

It appears the judge based this instruction on Model Jury Charge (Civil), 8.11C, "Loss of Earnings" (July 2010). However, the Committee on Model Civil Jury Charges ("the Committee's") comments to this model charge state

It is unclear to the Committee whether economic damage awards and/or emotional distress damage awards under the [LAD] are subject to either Federal and/or New Jersey State income taxation. See generally, 26 U.S.C.A. 194(a); IRS Rev. Ruling 96-56; United States v. Burke, 504 U.S. 229, 112 S. Ct. 1867, [ 119 L. Ed. 2d 34] (1992); and Commissioner v. Scheleir, 515 U.S. 323, 115 S. Ct. 2159, [ 132 L. Ed. 2d 294] (1995), regarding Federal taxation of awards under Federal discrimination law. Thus, it is unclear to the Committee whether the statement in the Charge that an award for lost earnings (Charge 8.11C) . . . is "not subject to federal or state income tax" is accurate with respect to awards under the [LAD].

[Ibid.]

The Committee continued

In Wachstein v. Slocum, 265 N.J. Super. 6, 24 (App. Div. 1993), certif. denied, 134 N.J. 563 (1993), the Appellate Division noted the "present uncertainty of the law in this area" and observed that "we believe the wisest course would be for the trial court to omit any reference to taxability in its instructions to the jury." See also Abrams v. Lightolier, Inc., 50 F.3d 1204, 1220 (3d Cir. 1995) (citing Wachstein, the court states that "we are confident that the New Jersey courts would not require that the award be calculated on net income").

[Ibid.]

In light of the strong reservations expressed by the Committee concerning the model charge, and the continued uncertainty as to the taxability of these awards under the LAD, we believe the trial judge should not have provided the jury with an instruction on the tax consequences of a back pay award.

In its original verdict, the jury awarded plaintiff $200,000 in back pay damages, "minus disability[,] unemployment[,] [and] federal/state taxes." The judge asked the jury foreperson, "But what were the . . . reductions that you make . . . from the $200,000[?]" The foreperson replied, "We've been unable to determine what those numbers would be." The judge did not attempt to further clarify the jury's verdict. However, it appears the jury did not follow the judge's clear instruction that it was not permitted to reduce any back pay award by plaintiff's unemployment compensation or disability benefits.

In spite of this error by the jury, the judge requested the parties to stipulate the next day that plaintiff received $85,000 in unemployment compensation and disability benefits. The parties also agreed on the applicable Federal and State income tax rates. The judge instructed the jury that this stipulation

is being presented to you now, so you can specify your award of back pay . . . Now what I'm going to do is I'm going to return you to the . . . jury room . . . with a new verdict sheet. The verdict sheet has only one question on it and it is: "What amount of damages, if any, do you award the [p]laintiff on her claim for back pay?"

There were three problems with this instruction. First, back pay awards should not be reduced by the amount of unemployment compensation or disability benefits received by a plaintiff. Sporn, 129 N.J. Super. at 457-60. Therefore, the judge should not have given the jury the opportunity to reduce plaintiff's award by considering her receipt of these benefits. Second, and as stated above, information on the taxability of economic damage awards should be omitted from jury instructions. Wachstein, supra, 265 N.J. Super. at 24. Instead, the judge should have instructed the jury to determine the back pay award based on plaintiff's gross income. Abrams, supra, 50 F.3d at 1220.

Third, the judge did not clearly instruct the jury on how to perform its recalculation. The judge stated that the jury's original verdict "included a decision of a back pay award of $200,000 less, as you have asked for deductions for disability, unemployment and federal and state taxes," thereby implying that the jury was to subtract the amounts included in the stipulation from its initial award. However, the only interrogatory presented to the jury simply asked, "What amount of damages, if any, do you award the [p]laintiff on her claim for back pay?"

This open-ended question and the absence of specific guidance to the jury may have contributed to the jury's decision to return from its deliberations with a much higher verdict of $301,708.75, a figure that cannot be readily correlated to any of the financial information presented to the jury. The judge did not ask for a clarification of this verdict prior to dismissing the jury. What is clear, however, is that the jury was obviously confused by the judge's instructions.

The judge attempted to address the matter by disregarding the jury's second verdict and then molding the original $200,000 verdict by reducing it by the amount of unemployment compensation and disability benefits she received and the taxes she would have paid on the back pay. For the reasons stated above, however, these deductions should not have been made. Moreover, a verdict may only be molded by the trial court if "a jury's finding is clear and unmistakable." Rillo v. E. Carrier Corp., 132 N.J.L. 414, 415-16 (E. & A. 1945). That was not the case here.

Under these circumstances, we conclude that the mistakes in the jury instructions as to damages led the jury to a result it otherwise might not have reached. Macon, supra, 57 N.J. at 336. Therefore, we reverse the May 23, 2014 order and remand for a new trial on the issue of back pay damages.

V.

In light of our determination that a new trial is required on the issue of back pay damages, the trial court's June 23, 2014 award of attorney's fees and costs will need to be reconsidered at the conclusion of that proceeding based on the totality of circumstances at that point. We therefore vacate the June 23, 2014 order and direct the trial court to recalculate the attorney's fees and costs due plaintiff following the completion of the remand proceedings.

VI.

In sum, we affirm the jury's liability verdict and its award of $30,000 in emotional distress damages to plaintiff. We also affirm the trial judge's dismissal of plaintiff's punitive damages claim. We reverse the back pay damages verdict, and remand for a new trial on back pay damages and a recalculation of attorney's fees and costs.

Affirmed in part; reversed in part; and remanded for further proceedings. We do not retain jurisdiction.

1 In her complaint, plaintiff also named her supervisor, Carol Johnson, as a defendant. However, she voluntarily dismissed her claims against Johnson during the trial. Therefore, all references to "defendant" in this opinion are to plaintiff's employer, Loving Care Agency, Inc.

2 The jury also awarded plaintiff $30,000 in damages on her claim for emotional distress. The parties do not challenge this portion of the verdict on appeal.

3 Prior to reducing her hours, plaintiff was earning $70,000 per year. Based on her new schedule, plaintiff's income fell to approximately $50,000 per year.

4 The verdict sheet did not require the jury to explain how it calculated the back pay award. However, the jury included a notation on the verdict sheet that stated, "4 year period." The parties have speculated that this "period" corresponds to the four years between plaintiff's termination in January 2010 and the April 8, 2014 verdict. As noted above, plaintiff was earning $50,000 per year at the time of her termination, which may further explain the $200,000 award. Again, however, the precise basis for the jury's verdict remains unclear.

5 The judge instructed the jury prior to its verdict that any back pay award "should not be reduced by . . . unemployment benefits or other unearned income that . . . [p]laintiff may have received." The judge also told the jury that "[a]ny award for lost earnings must be based on net or take home pay, not on gross income."