Michael Tomick v. United Parcel Service et al.

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Superior Court of Connecticut.

Michael Tomick v. United Parcel Service et al.

CV064008944

    Decided: October 28, 2010

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT (No. 145 and 150) RE MOTION TO SET ASIDE VERDICT OR FOR REMITTITUR (No. 166) RE MOTION TO SET ASIDE VERDICT OR FOR REMITTITUR (No. 168) RE MOTION TO SET ASIDE AWARD FOR PUNITIVE DAMAGES (No. 146 and 151) RE MOTION TO REARGUE/RECONSIDERATION RE ATTORNEYS FEES, BACK PAY, FRONT PAY AND REINSTATEMENT (No. 166)

I. FACTS

A. Claims and Procedural Posture

In this action, the plaintiff, Michael Tomick, alleged that the defendants, United Parcel Service, Inc. (UPS) and Kevin Trudelle, discriminated against him on the basis of his disability in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60(a)(1).1  The plaintiff also brought claims for negligent infliction of emotional distress and for violation of General Statutes § 31-51x, which prohibits an employer from requiring an employee “to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance.”

After a six-day trial, the jury returned with a verdict and responses to interrogatories for the plaintiff on July 9, 2010.2  Specifically, the jury found that the defendants engaged in unreasonable conduct toward the plaintiff during the termination process and that their conduct was the cause of emotional distress to the plaintiff.   The jury also found that UPS required the plaintiff to submit to a urinalysis test without a reasonable suspicion to do so.   Finally, the jury found that the plaintiff's physical disability was a motivating factor in UPS's decision to terminate the plaintiff's employment and that UPS willfully violated the plaintiff's rights.   The jury awarded the plaintiff $250,000 for negligent infliction of emotional distress as to UPS, $50,000 for negligent infliction of emotional distress as to Trudelle, $100,000 for violation of § 31-51x and $100,000 for disability discrimination.   Additionally, the jury awarded $500,000 in punitive damages, based on the finding that “UPS willfully violated the plaintiff's rights such that [the plaintiff should be entitled to an award of punitive damages.”

B. Summary of Facts and Inferences from the Evidence

For the purposes of this motion, the court must review the evidence in the case in the light most favorable to sustaining the verdict.   The events that give rise to this litigation occurred essentially over a four-day period in November and December of 2004.   The court does not find that there is a substantial dispute about the following facts.

During the relevant time period, the plaintiff was employed by UPS. Trudelle was one of the plaintiff's supervisors at the Norwich facility for UPS. Prior to the events that transpired during the relevant week, the plaintiff had been a long-time employee of UPS. He took pride and satisfaction in “wearing the browns.”   He described himself as a good employee and that description was not significantly contradicted by any of the testimony provided by UPS.

Significant for the purposes of this litigation is that the plaintiff had previously been injured on the job and received workers' compensation payments and a permanent partial disability rating of thirteen percent of his lower back.

November 30, 2004.   On Tuesday, November 30, 2004, while making a delivery late during the day, the plaintiff slipped and tumbled off of a step.   He felt his back get “tweaked.”   He reported the injury to work, but completed his route that evening.

December 1, 2004.   The following morning, the plaintiff called his supervisor, Trudelle, to tell him that he would not be able to work that day, but that he thought he could return the following day.   Trudelle required that the plaintiff go and see a physician.   As a result of the visit to the physician, the plaintiff was released to work without restrictions.   The plaintiff reported this to Trudelle, who was pleased.   The plaintiff also advised Trudelle that he would require a helper upon his return.   Trudelle told the plaintiff “that he would absolutely have a helper.”

Earlier in the morning of December 1, 2004, Trudelle had participated in a telephone conference regarding employee injuries.   During this conversation, the plaintiff's injury of the prior evening was discussed as well as his history of work injuries.   The plaintiff was identified as a “repeater.”

December 2, 2004.   When the plaintiff reported to work on December 2, 2004, he noted that he had a very full truck for deliveries and that he was not given notice that he would be receiving a helper that morning.   He was advised that he would have to undergo “Habits” training that morning with Michael Hebert.   When the plaintiff did not get an assigned helper, or when the helper who had been assigned to him did not show up, his pain increased to the point where he could not continue to work.   He called in to the UPS dispatch facility and later talked directly to Trudelle.   Trudelle used coarse language and directed the plaintiff to bring his truck back to the facility so that another driver could continue with the plaintiff's route.

Upon the plaintiff's return to the facility, he met with Trudelle.   Rather than allowing the plaintiff to go and see a physician about his back, Trudelle insisted that first the plaintiff submit to a fitness for duty test due to his irrational behavior.   When the plaintiff refused to go for the fitness for duty test, which he understood to be a drug test or a urinalysis test, Trudelle threatened that he would fire the plaintiff on more than one occasion.   As the plaintiff was leaving the UPS building, the verbal dispute continued.   The plaintiff said he was going to see a doctor and Trudelle threatened to call the police if the plaintiff attempted to drive out of the parking lot.   There were further references to the plaintiff being fired and at some point in the “conversation,” the plaintiff stated, “I should have kicked your ass for what you said to my wife earlier.”   Trudelle heard that statement by the plaintiff at a time when he was on a cell phone to his superior, Al Sheehan, and referenced this threatening language.   The plaintiff heard Trudelle make the statement on the cell phone and advised him that “I did not say I was going to kick your ass, but rather that I shoulda, woulda, coulda.”

Eventually, the plaintiff agreed to go for the fitness for duty test so long as he was driven by someone other than Trudelle.   When the plaintiff was seen at the Pequot Treatment Center in Groton, the physician determined that no uranalysis or drug testing was appropriate and that the plaintiff injured his back.   The plaintiff was taken out of work when this information was reported to Trudelle.   The plaintiff was advised to report for light duty the next day.

December 3, 2004.   On December 3, 2004, Trudelle met with the plaintiff, the union representative and another UPS supervisor, Victor Birch.   During the course of this meeting there was an extended discussion of the events of the preceding day without significant mention of the allegation that there was a violation of the work place violence policy.   The defendants asked the plaintiff if he would take another fitness for duty test that day and the plaintiff replied that he would.   The defendants left the room and then came back and said that there was no need for the plaintiff to go for the fitness for duty test, that they were just seeing if he would be agreeable to do so.   Trudelle then announced that the plaintiff was fired because of his violation of the work place violence policy.   The defendants asserted that the plaintiff violated the workplace violence policy during his conversation with Trudelle in the parking lot the day before.

Sometime after these events, a union grievance was filed with regard to the plaintiff's termination.   As a result of the grievance process, in May of 2006 the plaintiff was offered his job back if he could physically perform the work.

The parties were in dispute as to the inferences that could be drawn from these facts and the motivation of the parties for their conduct.   In evaluating the testimony of the witnesses presented by the defendants, Trudelle, Hebert, Sheehan and Birch, the jury was presented with documents that they could interpret as inconsistent with their testimony at trial.   For example, at trial Trudelle testified to the effect that he ordered the plaintiff to go for a fitness for duty test rather than a drug or urinalysis test.   Trial exhibit 13 was a memorandum prepared by Trudelle and sent to his supervisor, Sheehan, on December 3, 2004.   In the memorandum Trudelle wrote:  “I explained this to [the plaintiff] and informed him that while he was at the clinic receiving treatment for his back I was going to have the doctor give him a substance abuse test ․ and [I] explained to him what would happen if he refused to take the test ․ All the way to the clinic all [the plaintiff] was talking about was the fact that we had no right to test him for drugs or alcohol and would do whatever it took to stop the doctor from testing him.”   While there is a description of the confrontation/conversation between the plaintiff and Trudelle in the parking lot in exhibit 13, there is no mention in the memorandum about a violation of the workplace violence policy.

On December 1, 2004, Trudelle ordered an investigation of the location where the plaintiff fell.   Upon receipt of the report, Trudelle told the investigator, Hebert, to not disclose his investigation to the plaintiff.   (Exhibit 9.) The “Reasonable Cause/Fitness-For-Duty Medical Evaluation” form (Exhibit 1) was filled out by Trudelle on December 2, 2004.   In the form, Trudelle included reference to a phone conversation with the plaintiff's wife, who allegedly thought the plaintiff was having a “nervous breakdown.”   Trudelle did not identify physical indications for the requiring of a fitness for duty test, but did identify “Emotional Indicators.”   The plaintiff agreed he was upset during the meeting with Trudelle, but asserted that it was because he was in pain and that he did not feel he needed a drug test but that he needed medical attention.

Hebert was the UPS employee who provided the “Habits” training to the plaintiff on December 2, 2004.   The initial report (Exhibit 8) of that training was generally favorable to the plaintiff as to his receptiveness to safe work habits:  “[The plaintiff] knew what he did was wrong and committed to use better judgment in the future.”   Prior to the “Habits” training, Hebert was asked to investigate the location of where the plaintiff was injured on November 30.   Hebert provided a report to Trudelle and was told not to mention the investigation to the plaintiff.  (Exhibit 9.) In a December 3, 2004 memorandum to the plaintiff's work file (Exhibit 12), however, Hebert stated that “[The plaintiff] gave me no commitments that he would alter his behavior to prevent future occurrences.”

Birch described the conduct of the plaintiff in the December 3, 2004 termination meeting and why there was a question put to the plaintiff as to whether he would submit to another fitness for duty test.   The jury also heard a tape of that meeting that was made by the plaintiff and may have drawn from that tape inferences as to whether Birch had accurately described the meeting.

II. STANDARD OF REVIEW FOR MOTIONS TO SET ASIDE VERDICT OR REMITTITUR

The seminal case of Wichers v. Hatch, 252 Conn. 174, 186-88, 745 A.2d 789 (2000), provides guidance to the trial court with regard to post-trial motions.   In Wichers, the Supreme Court overruled prior precedent that held that a verdict in a personal injury case that awarded the plaintiff economic damages for medical treatment but zero noneconomic damages was per se inadequate.3  Id., 186.   A trial court reviewing a jury's verdict is constrained by several principles.  “The right to a jury trial is fundamental in our judicial system, and ․ that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court ․ Because in setting aside the verdict, the trial court deprives the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, our role generally is to examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion.”  (Citation omitted;  internal quotation marks omitted.)  Id., 188.

“[T]he trial judge must do just what every juror ought to do in arriving at a verdict.   The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly ․ The trial judge in considering the verdict must do the same ․ and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial ․” (Internal quotation marks omitted.)  Id., 186-87.  “[T]he trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue.   That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do.”  Id., 188-89.

It is not the function of this court to “sit as the seventh juror when [it] review[s] the sufficiency of the evidence ․ rather, [it] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict ․ Moreover, in reviewing the jury verdict, it is well to remember that jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life ․” (Citation omitted;  internal quotation marks omitted.)  Purzycki v. Fairfield, 244 Conn. 101, 112-13, 708 A.2d 937 (1998).   Stated another way, “[i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.”  (Internal quotation marks omitted.)  Broadnax v. New Haven, 294 Conn. 280, 299, 984 A.2d 658 (2009).

III. MOTION TO SET ASIDE VERDICT (No. 145, 150)

The defendants, UPS and Trudelle, move, pursuant to Practice Book § 16-37, to set aside the verdict in this case for three reasons.   First, the defendants claim the jury's verdict on count one, negligent infliction of emotional distress, must be set aside because there is no evidence that the defendants acted unreasonably in the termination process.   Secondly, the verdict with regard to count three, violation of § 31-51x, should be set aside because there is no evidence that UPS required the plaintiff to take a urinalysis drug test or alternatively that UPS had a reasonable suspicion for requiring such a test.   Finally, the jury's verdict regarding the sixth count, violation of § 46a-60, should be set aside because the plaintiff was not a qualified individual on December 3, 2004, the date of the termination and, further, that there was insufficient evidence to allow the jury to reasonably conclude that the plaintiff was discharged because of his disability.

A. Negligent Infliction of Emotional Distress

This claim is controlled and limited by the holdings of Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002).   In the present case, the parties disputed when the termination process began.   The defendants argue that the termination process began and ended on December 3, 2004.   The plaintiff argues that the termination process began on December 1, 2004, when the plaintiff was identified as a “repeater.”   The plaintiff points to the events that occurred between December 1 and December 4 as evidence that the defendant schemed to create a “for cause” reason to justify the plaintiffs termination.

The court finds that there is evidence and inferences that could be drawn from that evidence that a jury could rely upon to find that the termination process started as early as December 1, 2004.   The defendants properly investigated the location of the accident on December 1, 2004.   The defendants were pleased to find what they viewed as inconsistencies between the plaintiff's report of the accident and the physical characteristics of the accident site.   Trudelle threatened to fire the plaintiff several times during their conversation/confrontation on December 2. Instead of acknowledging that they had failed to provide a helper that day, as promised, and instead of sending the plaintiff for medical treatment, the jury could reasonably infer that the defendants tried to scheme to create “for cause” grounds for termination such as the refusal to take a urinalysis or drug test.   Further, the jury could have found that the defendants' termination of the plaintiff for violation of the workplace violence policy was a pretext.   The plaintiff immediately retracted any statement that he intended to do actual harm to Trudelle.   Trudelle admitted that he was not concerned about driving the plaintiff for the fitness for duty test, nor was the plaintiff in close physical proximity to Trudelle when the statements were made.   Finally, the jury could have reasonably drawn an inference that the defendants were attempting to provoke an additional violation of the workplace violence policy when they asked if the plaintiff would submit to a second fitness for duty test on December 3, 2004.

The conduct that the plaintiff relies on to establish the violation of statutory protections might, in and of itself, without reference to the statutory language, be conduct that created an unreasonable risk of causing emotional distress that could cause bodily harm during the context of the termination process.

The jury could reasonably have determined that some or all of this behavior supported a conclusion that the defendants acted unreasonably during the termination process and that the unreasonable conduct caused injury to the plaintiff.   Further, the jury, in performing its responsibility to evaluate the credibility of the witnesses, might have drawn further inferences in support of their verdict.

B. Violation of § 31-51x

UPS argues that the verdict with regard to count three, violation of § 31-51x, should be set aside because there is no evidence that UPS required the plaintiff to take a urinalysis drug test or alternatively that UPS had a reasonable suspicion for requiring such a test.

There is no dispute that UPS required, under threat of termination, that the plaintiff submit to a fitness for duty evaluation on December 2, 2004.   The physician who was requested to perform this evaluation determined that no urinalysis or substance abuse testing was appropriate based upon her examination of the plaintiff on that same date.   The jury had before it the testimony of the plaintiff that he was ordered to undergo a urinalysis test.   Further, the jury had before it the testimony of Trudelle and his written report of the incident created shortly after the events in question.   The jury also had before it the documentation relied upon by the defendant to justify these actions and the drug training curriculum provided to UPS supervisors such as Trudelle.   These facts and the inferences reasonably drawn therefrom provide a sufficient foundation for the jury finding that the UPS required the plaintiff directly or indirectly to submit to a urinalysis drug test on December 2, 2004, and, further, that UPS did not have a reasonable suspicion to require the plaintiff to submit to a urinalysis drug test.

C. Violation of § 46a-60

UPS argues that the jury's verdict on the sixth count, violation of § 46a-60, should be set aside because the plaintiff was not a qualified individual on December 3, 2004, the date of the termination and, further, that there was insufficient evidence to allow the jury to reasonably conclude that the plaintiff was discharged because of his disability.

Given the circumstances of this case, the court determined that the physical qualifications of the plaintiff to perform the job of package car driver were properly evaluated as of the morning of December 1, 2004.   There is no dispute that on that date the plaintiff was physically capable of performing his job.

Further, the court is of the opinion that there was sufficient evidence that allowed the jury to conclude that UPS discharged the plaintiff because of his disability.

IV. MOTIONS FOR REMITTITUR (No. 166, 168)

A. Trudelle's Motion to Set Aside or for Remittitur (No. 166)

Trudelle asserts that the court should order a remittitur as to the verdict against him in that the verdict against him is duplicative of the verdict against UPS and, further, that the award is excessive based upon the evidence in this case.

Trudelle argues that there is no evidence that he acted outside the scope of his employment and therefore any award against him personally is duplicative of the award against his codefendant and employer UPS. The court does not agree that the award is duplicative of the award against UPS. First, while counsel for UPS stated during oral argument of this motion that UPS has, in effect, ratified the conduct of Trudelle, this claim was not expressly made during the presentation of the case to the jury.   Second, the jury was charged with assessing the credibility of the witnesses in this case, including the plaintiff and Trudelle.   The jury heard their differing recollections of the content and tone of their conversations during the time in question.   The jury may reasonably have drawn inferences from the testimony that Trudelle was out to get the plaintiff.   Further, the court will presume that the jury followed its instructions with regard to nonduplication of damages.4  Finally, the jury interrogatories and verdict form expressly reminded the jury that damages as between Trudelle and UPS were not to be duplicated.5

The second ground raised by Trudelle is that the award for compensatory noneconomic damages is excessive.   When reviewing a request for remittitur, “the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict.”   (Internal quotation marks omitted.)  Bartholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d 1014 (1991).  “The size of the verdict alone does not determine whether it is excessive.   The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.”  (Internal quotation marks omitted.)  Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988).   Further, General Statutes § 52-216 provides, in relevant part:  “If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon the failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial ․”

In Oakes v. New England Dairies, Inc., 219 Conn. 1, 591 A.2d 1261 (1991), the plaintiff claimed that he was terminated from employment because he had filed claims for workers' compensation.   The jury returned a verdict in his favor and awarded, inter alia, $97,500 in noneconomic or emotional distress damages.  Id., 3. The trial court denied the defendant's motion for remittitur and the Supreme Court upheld the denial of the motion for remittitur.  Id., 15.   The Supreme Court noted that “the jury could have determined that [the plaintiff had suffered significant emotional distress and feelings of desperation as a result of his discharge, his concomitant loss of benefits and the termination of his vested pension rights.   The plaintiff's precarious mental condition, necessitating prescription medication, also manifested itself in physical illness and discomfort.   His futile four year search for employment as beneficial and financially secure as his former position was accompanied by numerous humiliating rejections which caused recurring physical problems and led to further emotional distress.”  Id., 14.   The Supreme Court described this award as “generous,” but found that the award did not fail the test of being “just damages.”  Id., 15.

In the present case, there are several parallels to the facts in the Oakes case.   The plaintiff was a long-time employee, a driver, of the defendant UPS and had known the defendant Trudelle for some time.   As a result of the defendants' conduct during the termination process, the jury found that the defendants negligently inflicted emotional distress on the plaintiff.   As a result of that conduct, the plaintiff described his significant emotional reaction to the termination of his employment.   The plaintiff described his feelings and the physical and mental inability to sleep or eat.   He described the effect on his interactions with the community and his loss of weight.   The plaintiff described himself as a proud employee of UPS and that he took pride in his work and his stature in the community as a UPS delivery person.   It was a job that provided health benefits for the plaintiff and his family, vacation time and pension benefits.   The fact that the plaintiff did not seek medical help does not necessarily diminish the severity of his emotional distress.   Access to and receptiveness to mental health care are not the sole measures of the seriousness of emotional distress.   Also affecting an award of damages for emotional distress is the credibility of the plaintiff.

In the present case the court does not find the verdict against Trudelle excessive, nor does the award shock the court's conscience.

B. UPS's Motion to Set Aside or for Remittitur (No. 168)

UPS challenges the jury's award of compensatory damages against it as excessive and not supported by the evidence in the case.   It argues that the awards for negligent infliction of emotional distress ($300,000 including the award against its employee, Trudelle);  violation of § 31-51x ($100,000) and disability discrimination in violation of § 46a-60 ($100,000) are excessive.

The court applies the same standards as it used in evaluating Trudelle's motion for remittitur.   The court presumes that the jury followed the court's instructions and the directions contained within the verdict and interrogatory forms.   The court also concludes from the verdict that the jury found that the plaintiff was a credible witness and that some of the defense witnesses were not credible in their testimony.   In evaluating emotional distress damages there is no bright line measure.   As previously noted, in 1991 the Supreme Court upheld an emotional distress award of $97,500 in Oakes v. New England Dairies, supra, 219 Conn. 15.

Here, the jury had before it evidence in the form of the plaintiff's testimony as to his reaction to the defendants' conduct when they terminated his employment and when UPS violated not one, but two separate rights conferred to the plaintiff by the legislature.   The court does not find that these damage awards, whether considered singly or jointly, rise to a level to shock the court's conscience or go beyond what would be just damages.

V. MOTIONS TO SET ASIDE AWARD FOR PUNITIVE DAMAGES (No. 146, 151)

On July 9, 2010, the jury determined that the plaintiff's physical disability was a motivating factor in UPS's decision to terminate his employment.   It further responded affirmatively to jury interrogatory 12, which asked “Do you believe that UPS willfully violated the plaintiff's rights such that he should be entitled to an award of punitive damages?”   Thereafter, in an appropriate blank on the verdict form, the jury awarded the plaintiff $500,000 in punitive damages.

On July 16, 2010, UPS filed a motion to set aside the award for punitive damages.   On August 9, 2010, the plaintiff filed a memorandum in opposition to the motion.

UPS argues that the jury should never have been charged on the issue of punitive damages because § 46a-104 does not provide for such an award.   Further, UPS argues that the record does not support an award of punitive damages in the present case.   Finally, UPS argues that an award of punitive damages in Connecticut is limited to the costs of litigation and that an allowance of punitive damages under § 46a-104 would lead to a double recovery of attorneys fees.

In response, the plaintiff argues that the language of § 46a-104 supports an award of punitive damages.   Further, the plaintiff asserts that an award of punitive damages is appropriate in the present case because the jury concluded that UPS willfully violated the plaintiff's rights.   The plaintiff argues that punitive damages are not limited to attorneys fees when the damages are allowed pursuant to statute.   Finally, the plaintiff argues that the record supports an award of punitive damages.

A. Support for Award of Punitive Damages

The first issue the court will address is whether the record in the present case supports the jury's award of punitive damages.  “The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence ․ [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles ․” (Internal quotation marks omitted.)  Monti v. Wenkert, 287 Conn. 101, 110, 947 A.2d 261 (2008).   As UPS notes, “[p]unitive damages may be awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others.”  (Internal quotation marks omitted.)  Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 245, 919 A.2d 421 (2007).

In the present case, the jury was instructed that “[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant's reckless indifference to the rights of others or an intentional and wanton violation of those rights.   You may award punitive damages only if you unanimously find, from facts established by a preponderance of the evidence, that the conduct of the defendant was, in fact, outrageous.”   With that instruction, the jury made specific findings with respect to UPS's conduct.   The jury found that the plaintiffs physical disability was a motivating factor in UPS's decision to terminate the plaintiff's employment.   Further, the jury found that UPS willfully violated the plaintiff's rights.   Construing the evidence and reasonable inferences in a light most favorable to the prevailing party the jury could have reasonably arrived at this conclusion based on the evidence presented at trial and their evaluation of the credibility of the witnesses offered by the defendant.   Stated another way, the court does not find that the punitive damage award in this case is “manifestly unjust.”

B. DouDP1⌑UPS argues that punitive damages are limited to attorneys fees in the state of Connecticut, and that allowing an award of punitive damages would lead to a double recovery of attorneys fees.  Connecticut adheres to a long-standing rule that “common-law punitive damages serve primarily to compensate the plaintiff for his injuries and, thus, are properly limited to the plaintiff's litigation expenses less taxable costs.”  Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992).

In Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 64-65, 578 A.2d 1054 (1990), the Supreme Court expressly determined that an award of punitive damages in accordance with the common-law rule and a separate and distinct award of attorneys fees was appropriate.   On several other occasions, the Supreme Court has upheld awards of punitive damages in conjunction with awards of attorneys fees when the punitive damages were provided for by statute.   See, e.g., Votto v. American Car Rental, Inc., 273 Conn. 478, 871 A.2d 981 (2005);  Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004);  Elm City Cheese Co. v. Federico, 251 Conn. 59, 752 A.2d 1037 (1999).   The fact that attorneys fees have been awarded in the present case does not automatically preclude an award of punitive damages.

C. Punitive Damages Pursuant to § 46a-104

1. Case Law

The court now turns to the dispositive issue in this argument-whether punitive damages are authorized in this case.   Section 46a-104 provides:  “The court may grant a complainant in an action brought in accordance with Section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs.”   The appellate courts have not determined whether § 46a-104 allows for an award of punitive damages, although two recent Appellate Court cases have mentioned the issue.   In Perez v. D & L Tractor Trailer School, 117 Conn.App. 680, 710, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010), the defendant argued at trial that a prevailing plaintiff in a discrimination case was not entitled to punitive damages under the CFEPA.   The Appellate Court quoted the following colloquy between the trial court and the defendant's counsel:

The Court:  And doesn't § 46a-104 provide that attorneys fees can be ․ awarded?

[The Defendant's Counsel]:  Yes, it does, Your Honor.

The Court:  And haven't I ruled that the only punitive damages I'm going to award are attorneys fees?

[The Defendant's Counsel]:  Yes, Your Honor, but in Connecticut ․ the only fees you can get under punitive damages are attorneys fees.

The Court:  That's all I'm awarding.

Id. Following the quotation, the Appellate Court held that “[§ ]46a-104 provides that the prevailing party in a discrimination action may be awarded attorneys fees.   The court therefore did not abuse its discretion by denying the defendant's motion for judgment notwithstanding the verdict.”  Id. The Appellate Court's decision in Perez is not instructive in that it did not address the issue in this case, namely, whether an award of punitive damages are authorized by statute in addition to the expressly authorized award of attorneys fees.

Most recently, the Appellate Court explicitly reserved the issue of punitive damages pursuant to § 46a-104 in Ware v. State, 118 Conn.App. 65, 87 n.14, 983 A.2d 853 (2009).   In that case, the defendant, the state of Connecticut, argued that sovereign immunity barred the plaintiff's claim for punitive damages pursuant to § 46a-104.  Id., 87.   The Appellate Court noted that “[t]he defendant also questions whether § 46a-104 even permits the awarding of punitive damages at all, whether against the state or a private party.   We need not address this argument because we conclude that sovereign immunity bars the recovery of punitive damages against the state under § 46a-104.”   Id., 87 n. 14.   The analysis of the court was focused on the issue of the extent of the statutory waiver of sovereign immunity rather than an analysis of the language of § 46a-104.   The Ware court noted “the well established principle that statutes in derogation of sovereign immunity should be strictly construed ․ Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity ․ We conclude the legislature did not, either expressly or by force of a necessary implication, statutorily waive the state's sovereign immunity from liability for punitive damages under the fair employment act.”  (Citations omitted;  internal quotation marks omitted.)  Ware v. State, supra, 118 Conn.App. 88.

To date, there are few cases in the state of Connecticut where a plaintiff sought to recover punitive damages pursuant to § 46a-104 against a private defendant.   Of these cases, some courts have held that the plaintiff was not entitled to recover punitive damages under the statute.   See, e.g., Shaw v. Greenwich Anesthesiology Associates, P.C., 200 F.Sup.2d 110, 117-18 (D.Conn.2002);  Peckinpaugh v. Post-Newsweek Stations Connecticut, Inc., United States District Court Docket No. 3:96CV2475(AVC) (D.Conn. March 10, 1999);  Craine v. Trinity College, Superior Court, judicial district of Hartford, Docket No. CV 95 0555013 (December 27, 1999, Peck, J.), reversed in part on other grounds, 259 Conn. 625, 791 A.2d 518 (2002).   The majority of the cases in this line disallowed an award of punitive damages based on the fact that the statute does not explicitly authorize punitive damages.   See, e.g., Peckinpaugh v. Post-Newsweek Stations Connecticut, Inc., supra, United States District Court, Docket No. 3:96CV2475(AVC).

In contrast, some Superior Court cases have held that punitive damages are available to a successful plaintiff pursuant to § 46a-104.   See, e.g., Collier v. Connecticut Department of Public Safety, Superior Court, judicial district of Middlesex, Docket No. CV 96 80659 (May 3, 1999, Arena, J.) (24 Conn. L. Rptr. 433);  Cantoni v. Xerox Corp., Superior Court, judicial district of Hartford, Docket No. CV 98 0582705 (February 3, 1999, Fineberg, J.) (24 Conn. L. Rptr. 38).   These cases hold that there is no restriction in § 46a-104 against an award of punitive damages and that the use of the word “including” indicates that punitive damages are authorized under the statute.

2. Statutory Language

When construing a statute, the court begins with General Statutes § 1-1(a), which provides:  “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language;  and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”   Further, General Statutes § 1-2z, titled “plain meaning rule,” provides:  “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”

“The principles that govern statutory construction are well established.   When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning ․ § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․” (Internal quotation marks omitted.)  Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007).  “An axiomatic rule of statutory construction is that statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.”  (Internal quotation marks omitted.)  Fishbein v. Kozlowski, 252 Conn. 38, 61, 743 A.2d 1110 (1999).

The plaintiff argues that the inclusion of the phrase “including, but not limited to” in § 46a-104 is significant because the phrase is expansive in its nature.  “[T]he phrase [‘including but not limited to’] convey[s] a clear intention that the items listed in the definition do not constitute an exhaustive or exclusive list ․ Although ‘including’ has been found to be ambiguous by itself, other language may remove the ambiguity ․ By adding the phrase ‘but not limited to,’ [a] statute clearly indicates that ‘including’ is meant as a term of expansion.”  (Citation omitted;  internal quotation marks omitted.)  Lusa v. Grunberg, 101 Conn.App. 739, 756-57, 923 A.2d 795 (2007).

UPS argues that the legislature's failure to expressly include punitive damages in the language of the statute indicates the intent to preclude an award under § 46a-104.   Punitive damages are explicitly allowed under several sections of the Connecticut General Statutes.   See, e.g., General Statutes § 42-110g (Connecticut Unfair Trade Practices Act);  General Statutes § 52-240g (product liability actions);  General Statutes § 19a-550 (patients' bill of rights).

For example, the Connecticut Unfair Trade Practices Act explicitly allows for punitive damages pursuant to § 42-110g(a), which provides, in relevant part:  “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by Section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages ․ The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”   This statutory language was first adopted in 1973 as a part of Public Acts 1973, No. 73-6, § 7. Based on the language of § 42-110g(d), the Connecticut Supreme Court has held that “CUTPA allows for the recovery of punitive damages ․ and attorneys fees.”  (Citation omitted.)  Stearns & Wheeler, LLC v. Kowalsky Bros., Inc., 289 Conn. 1, 9 n.12, 955 A.2d 538 (2008).   This is a logical conclusion based on § 1-2z, the “plain meaning rule.”   In Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 216 Conn. 64-65, the Supreme Court noted that “[a]lthough an award of what may amount in effect to double attorneys fees is unusual, we conclude that there is no legal impediment to such a dual award in an appropriate case.”

In General Statutes § 31-291a, adopted in Public Acts 1984, No. 84-330, §§ 1, 2, the legislature provided:  “Any employee who is so discharged or discriminated against may either:  (1) Bring a civil action in the superior court for the judicial district ․ for reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled ․ and any other damages caused by such discrimination or discharge.   The court may also award punitive damages.   Any employee who prevails in such a civil action shall be awarded reasonable attorneys fees and costs to be taxed by the court ․” Thus the legislature in 1984 expressly authorized the court, in its discretion, to determine punitive damages in an appropriate case and also allowed for an award of attorneys fees.

These two statutory schemes, adopted prior to the enactment of § 46a-104 in 1991, demonstrate that the legislature in at least two instances has expressly and explicitly given the courts the discretion to award punitive damages in addition to an award of attorneys fees.

The court is aware of one statutory claim damage scheme that uses the expansive language of § 46a-104 and also expressly authorizes an award of attorneys fees.  General Statutes § 22-351a establishes liability for intentionally killing or injuring a companion animal and provides that a person who does so “shall be liable to the owner of such companion animal for economic damages sustained by such owner including, but not limited to, expenses of veterinary care, the fair monetary value of the companion animal and burial expenses for the companion animal.”   Despite the use of this expansive language, the legislature went on in subsection (c) of § 22-351 as to expressly award “punitive damages in an amount not to exceed the jurisdictional monetary limit ․ together with a reasonable attorneys fee.”   Because this statute refers to “economic damages” as opposed to the “legal remedy” provided in § 46a-104, the wording of the companion animal statute tends to undercut but does not topple the plaintiff's argument that when the legislature uses expansive language when discussing damages it intends to include authorization for a court to award punitive damages.

The language of § 46a-104 does not explicitly provide for an award of punitive damages, as is the case in § 42-110g and other statute sections that were enacted before it.   Section 46a-104, however, contains the phrase “including, but not limited to,” which is expansive in nature.

The court has reviewed the legislative history of § 46a-104 and it has not provided any significant guidance toward the resolution of this issue.

The court has also considered the public policy the legislature intended to promote in prohibiting discrimination in the employment arena.   These protections were created for both public and private employees on a state and federal level.   The Connecticut Supreme Court has noted that it considers analogous federal statutes in the interpretation of the CFEPA.   See State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989).   Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination on the basis of race, color, religion, sex and national origin.   Under Title VII, attorneys fee are allowed under 42 U.S.C. § 2000e-5(k) and punitive and compensatory damages are also expressly allowed, subject to limits based on the number of employees.   The presence of an express authorization of an award of punitive damages in the federal statute and the absence of such an express authorization in state statutory scheme supports a conclusion that punitive damages are not allowed under § 46a-104.

The court could not find support for the plaintiff's position in its examination of other sections of Title 46a of the Connecticut General Statutes.   Expanding the scope of review beyond this title, the court has previously discussed other statutory schemes adopted prior to § 46a-104 in which the legislature expressly authorized punitive damages.   In these schemes the legislature has designated the court rather than the jury as the arbiter of an award of punitive damages.  Section 42-110g(a) provides, in relevant part:  “The Court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”   Section 31-291a provides, in relevant part:  “The court may award punitive damages.”   Section 22-351a(c) provides, in relevant part:  “[T]he court may award punitive damages in an amount not to exceed the jurisdictional monetary limit established by subsection (d) of Section 51-15, together with a reasonable attorneys fee.”

This court finds that the legislature's inclusion of the phrase “including, but not limited to” conveys the legislative intention to give the court broad legal and equitable powers in fashioning relief once discrimination has been found.   Front pay is not expressly referenced in the statute but has historically been included in the tools available to a court to remedy discrimination.   This conclusion is supported by the premise that statutes should be construed so that no part of the statute is treated as insignificant and unnecessary.  Fishbein v. Kozlowski, supra, 252 Conn. 61.

The court thus concludes that the language of § 46a-104 does not expressly or necessarily authorize the jury to award punitive damages in this case.   If anyone could make an award of punitive damages in this case it would be the court, not the jury.   However, reviewing the legislative history, the policy that the legislation was designed to address and this section's language as compared to other statutory sections, the court holds that punitive damages are not authorized in this case to be imposed by either the jury or the court.   The motions to set aside the award of punitive damages are granted.

VI. MOTION TO REARGUE AND FOR ARTICULATION (No. 165)

UPS seeks reargument with regard to the court's decisions awarding attorneys fees, back pay and front pay.   The motion for reargument is denied.

UPS seeks reargument with regard to the court's order that the plaintiff be reinstated to his position with UPS as a package car driver and a termination of stay upon appeal.   The defendant's motion for reargument is granted with regard to reinstatement and termination of the stay.   The court heard arguments with regard to merits of these portions of the motion on October 18, 2010.6

UPS argues that it intends to file a comprehensive appeal from the jury's verdict in this case.   It will challenge the factual underpinnings of the jury's verdict as well as assert claims that the trial court erred in a number of its rulings during the course of the trial.   The authority of the court to order the reinstatement of the plaintiff arises from the jury's finding that UPS discriminated against the plaintiff on the basis of his disability.   UPS argues that the administration of justice would be affected if the plaintiff was ordered reinstated and then subsequently the appellate courts reversed the verdict that the plaintiff was terminated on account of discrimination.   UPS would then be in the position one or two years from now of having to fire or terminate the plaintiff, which might again give rise to additional claims on behalf of the plaintiff.   UPS argues that if its appeal is unsuccessful the plaintiff can be made whole by an increased award of back pay and pension funding and that his reinstatement can be considered at that time.

The court disagrees with the arguments put forward by UPS. First, the jury concluded that UPS discriminated against the plaintiff on the basis of his physical disability and, further, that UPS acted in an outrageous manner.   The court understands that the defendant strongly disagrees with these conclusions but the court defers to the jury's conclusions on these issues.

Second, during the course of the trial there was evidence that in 2006 the plaintiff's grievance with regard to his termination for violation of the workplace violence policy was resolved favorably to the plaintiff.   As a result of this favorable resolution, the plaintiff was offered his job back.   During this period of time the plaintiff had already filed his claim of discrimination with the Connecticut Commission on Human Rights and Opportunities.   Given the fact that the plaintiff should not have been terminated for the violation of the workplace violence policy, the court cannot see an impediment to the plaintiff's immediate reinstatement pursuant to the finding of discrimination inherent in the jury's verdict.

Third, the plaintiff has a wife and two minor children.   If the plaintiff is not reinstated there is a significant likelihood that the children will not have the benefit of medical insurance that is an incident of employment with UPS. When arguing the issue of back pay earlier in this case, the defendants argued against including in the award any of the medical insurance premiums that UPS would have paid during the back pay period.   The court agreed with the defendants on that issue.   Going forward, it would be very hard to determine what health care providers would have been consulted or what health care would have been paid for by UPS if the plaintiff does not have medical insurance during the period of the appeal.

Finally, it is not clear to the court how UPS would be harmed by the lifting of the stay and the immediate reinstatement of the plaintiff.   UPS will receive the benefit of the plaintiff's labor.

Thus the court disagrees with the defendant's position that it is likely to prevail in any appeal that it files in this case.   The court has corrected the erroneous submission of the punitive damage issue to the jury.   The court has determined that the remaining verdicts of compensatory damages are supported by the law and evidence as previously discussed.   The court is not persuaded that the defendant has identified any irreparable injury that it would suffer from the reinstatement of the plaintiff to his former position.   Further if the defendant is unsuccessful in the appeal an increased award of back pay will not make the plaintiff whole for the reasons previously discussed.

In ordering a lifting of the stay, the court notes that it does not intend to give the plaintiff any greater rights than if the stay had remained in place while the prospective appeal was pending.

VII. SUMMARY

(1) The defendants' motions to set aside the verdict (no. 145, 150) are denied.

(2) Trudelle's motion to set aside the verdict or for remittitur (no. 166) is denied.

(3) UPS's motion to set aside the verdict or for remittitur (no. 168) is denied.

(4) UPS's motions to set aside the awards for punitive damages (no. 146, 151) are granted.

(5) UPS's motion to reargue/reconsideration with respect to attorneys fees, back pay and front pay (no. 166) is denied.

(6) UPS's motion to reargue with respect to reinstatement and termination of stay (no. 166) is granted.   Oral argument was held with respect to this motion on October 18, 2010.

(7) UPS's motion to reconsider with respect to reinstatement and termination of stay (no. 166) is denied.

The Court

Cosgrove, J.

FOOTNOTES

FN1. Section 46a-60(a)(1) provides, in relevant part:  “It shall be a discriminatory practice in violation of this section ․ [for an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual ․ because of the individual's ․ physical disability ․”.  FN1. Section 46a-60(a)(1) provides, in relevant part:  “It shall be a discriminatory practice in violation of this section ․ [for an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual ․ because of the individual's ․ physical disability ․”

FN2. PLAINTIFF'S VERDICT FORM AND JURY INTERROGATORIES COUNT ONE:  Negligent Infliction of Emotional Distress1.  Did UPS engage in unreasonable conduct toward Mr. Tomick during the termination process?Yes X (Go on to Question 2.)No _ (Stop. Enter a verdict for UPS on Count One.)2. If you answered “Yes” to Question 1, was UPS's conduct during the termination process the proximate cause of emotional distress for Mr. Tomick?Yes X (Go on to Question 3.)No _ (Stop. Enter a verdict for UPS on Count One.)3. If you answered “Yes” to Questions 1 and 2, what amount of money fairly compensates Mr. Tomick for emotional distress damages caused by UPS's conduct during the termination process?$250,000.4.  Did Mr. Trudelle engage in unreasonable conduct toward Mr. Tomick during the termination process?Yes X (Go on to Question 5.)No _ (Stop. Enter a verdict for Mr. Trudelle on Count One.)5. If you answered “Yes” to Question 4, was Mr. Trudelle's conduct during the termination process the proximate cause of emotional distress for Mr. Tomick?Yes X (Go on to Question 6.)No _ (Stop. Enter a verdict for Mr. Trudelle on Count One.)6. If you answered “Yes” to Questions 4 and 5, what amount of money fairly compensates Mr. Tomick for emotional distress damages caused by Mr. Trudelle's conduct during the termination process?$50,000.COUNT TWO:  Drug Testing (Conn.Gen.Stat. § 31-51x)7.  Did UPS require Mr. Tomick directly or indirectly to submit to a urinalysis drug test on December 2, 2004?Yes X (Go on to Question 8.)No _ (Stop. Enter a verdict for UPS on Count Two.)8. If you answered “Yes” to Question 7, did UPS have a reasonable suspicion to require Mr. Tomick to submit to a urinalysis drug test on December 2, 2004?Yes _ (Stop. Enter a verdict for UPS on Count Two.)No X (Go on to Question 9.)9.  If you answered “Yes” to Question 7 and “No” to Question 8, what amount of money fairly compensates Mr. Tomick for emotional distress damages due to the Company requiring Mr. Tomick to submit to a urinalysis drug test on December 2, 2004?$100,000.COUNT THREE:  Disability Discrimination (§ 46a-60(a)(1))10.  Was Michael Tomick's physical disability a motivating factor in the defendant's decision to terminate his employment?Yes X (Go on to Question 11.)No _ (Stop. Enter a verdict for UPS on Count Three.)11. What amount of money fairly compensates Mr. Tomick for damages caused by UPS's violation of Section 46a-60(a) (disability discrimination)?$100,000.12.  If you answered “Yes” to Question 10, do you believe that UPS willfully violated the plaintiff's rights such that he should be entitled to an award of punitive damages?Yes X (Go on to Page 4.)No _SUMMARY OF DAMAGESCount one:  Negligent Infliction of Emotional Distress (From Question 3 and Question 6.)$250,000 (Damages are not to be duplicated) UPS$50,000 (Damages are not to be duplicated) TRUDELLECount Two:  Drug Testing (Conn. General Statutes Section 31-51x) (From Question 9)$100,000Count Three:  Disability Discrimination (Section 46a-60(a)(1)) (From Question 11.)$100,000.VERDICT:  The following is our verdict on damages, as applicable with regard to Counts 1, 2 and 3 as appropriate with no duplication of damages.Compensatory Damages as to UPS $ 450,000Compensatory Damages as to Trudelle $ 50,000Punitive Damages $ 500,000Total $1,000,000Date July 9, 2010 /s/ RT, Foreperson.  FN2. PLAINTIFF'S VERDICT FORM AND JURY INTERROGATORIES COUNT ONE:  Negligent Infliction of Emotional Distress1.  Did UPS engage in unreasonable conduct toward Mr. Tomick during the termination process?Yes X (Go on to Question 2.)No _ (Stop. Enter a verdict for UPS on Count One.)2. If you answered “Yes” to Question 1, was UPS's conduct during the termination process the proximate cause of emotional distress for Mr. Tomick?Yes X (Go on to Question 3.)No _ (Stop. Enter a verdict for UPS on Count One.)3. If you answered “Yes” to Questions 1 and 2, what amount of money fairly compensates Mr. Tomick for emotional distress damages caused by UPS's conduct during the termination process?$250,000.4.  Did Mr. Trudelle engage in unreasonable conduct toward Mr. Tomick during the termination process?Yes X (Go on to Question 5.)No _ (Stop. Enter a verdict for Mr. Trudelle on Count One.)5. If you answered “Yes” to Question 4, was Mr. Trudelle's conduct during the termination process the proximate cause of emotional distress for Mr. Tomick?Yes X (Go on to Question 6.)No _ (Stop. Enter a verdict for Mr. Trudelle on Count One.)6. If you answered “Yes” to Questions 4 and 5, what amount of money fairly compensates Mr. Tomick for emotional distress damages caused by Mr. Trudelle's conduct during the termination process?$50,000.COUNT TWO:  Drug Testing (Conn.Gen.Stat. § 31-51x)7.  Did UPS require Mr. Tomick directly or indirectly to submit to a urinalysis drug test on December 2, 2004?Yes X (Go on to Question 8.)No _ (Stop. Enter a verdict for UPS on Count Two.)8. If you answered “Yes” to Question 7, did UPS have a reasonable suspicion to require Mr. Tomick to submit to a urinalysis drug test on December 2, 2004?Yes _ (Stop. Enter a verdict for UPS on Count Two.)No X (Go on to Question 9.)9.  If you answered “Yes” to Question 7 and “No” to Question 8, what amount of money fairly compensates Mr. Tomick for emotional distress damages due to the Company requiring Mr. Tomick to submit to a urinalysis drug test on December 2, 2004?$100,000.COUNT THREE:  Disability Discrimination (§ 46a-60(a)(1))10.  Was Michael Tomick's physical disability a motivating factor in the defendant's decision to terminate his employment?Yes X (Go on to Question 11.)No _ (Stop. Enter a verdict for UPS on Count Three.)11. What amount of money fairly compensates Mr. Tomick for damages caused by UPS's violation of Section 46a-60(a) (disability discrimination)?$100,000.12.  If you answered “Yes” to Question 10, do you believe that UPS willfully violated the plaintiff's rights such that he should be entitled to an award of punitive damages?Yes X (Go on to Page 4.)No _SUMMARY OF DAMAGESCount one:  Negligent Infliction of Emotional Distress (From Question 3 and Question 6.)$250,000 (Damages are not to be duplicated) UPS$50,000 (Damages are not to be duplicated) TRUDELLECount Two:  Drug Testing (Conn. General Statutes Section 31-51x) (From Question 9)$100,000Count Three:  Disability Discrimination (Section 46a-60(a)(1)) (From Question 11.)$100,000.VERDICT:  The following is our verdict on damages, as applicable with regard to Counts 1, 2 and 3 as appropriate with no duplication of damages.Compensatory Damages as to UPS $ 450,000Compensatory Damages as to Trudelle $ 50,000Punitive Damages $ 500,000Total $1,000,000Date July 9, 2010 /s/ RT, Foreperson

FN3. In Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), the court held that an award limited to nominal or special damages necessarily and logically required an award of noneconomic damages, and that, therefore, an award limited to economic damages is inadequate as a matter of law and should be set aside..  FN3. In Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), the court held that an award limited to nominal or special damages necessarily and logically required an award of noneconomic damages, and that, therefore, an award limited to economic damages is inadequate as a matter of law and should be set aside.

FN4. The court instructed the jury, in part, as follows:  “A basic principle of compensatory damages is that an injury can be compensated only once.   If two causes of action provide a legal theory for compensating one injury, only one recovery may be obtained.   Only if the second cause of action entitles the plaintiff to recover for an injury separate from the injury compensated by the award for the first cause of action, or at least for an additional component of injury not covered by the first cause of action, may additional damages be awarded.   Similarly, once an award of damages has been determined for an injury, there may not be additional compensatory damages for that same injury from two or more defendants.   You, the jury, must decide what amount of money reasonably compensates the plaintiff for the injury and which of the defendants are liable for causing that injury.”.  FN4. The court instructed the jury, in part, as follows:  “A basic principle of compensatory damages is that an injury can be compensated only once.   If two causes of action provide a legal theory for compensating one injury, only one recovery may be obtained.   Only if the second cause of action entitles the plaintiff to recover for an injury separate from the injury compensated by the award for the first cause of action, or at least for an additional component of injury not covered by the first cause of action, may additional damages be awarded.   Similarly, once an award of damages has been determined for an injury, there may not be additional compensatory damages for that same injury from two or more defendants.   You, the jury, must decide what amount of money reasonably compensates the plaintiff for the injury and which of the defendants are liable for causing that injury.”

FN5. See footnote 2..  FN5. See footnote 2.

FN6. Out of an abundance of caution the defendant UPS also filed a Motion for Review pursuant to Practice Book Sec. 66-6.   Given the voluminous number of post-trial motions filed by the defendant and the arguments of the defendant in favor of reinstatement as opposed to an award of front pay the court improperly assumed that the defendant did not object to the immediate reinstatement of the plaintiff.   Further the court was unaware that counsel had apparently agreed to a delay in filing the opposition to the lifting of the stay until after the court had decided the issues of front pay, back pay and counsel fees.  (See Motions no. 163 and 164).   It was not the court's intent to deprive the defendant of an opportunity to be heard on these issues..  FN6. Out of an abundance of caution the defendant UPS also filed a Motion for Review pursuant to Practice Book Sec. 66-6.   Given the voluminous number of post-trial motions filed by the defendant and the arguments of the defendant in favor of reinstatement as opposed to an award of front pay the court improperly assumed that the defendant did not object to the immediate reinstatement of the plaintiff.   Further the court was unaware that counsel had apparently agreed to a delay in filing the opposition to the lifting of the stay until after the court had decided the issues of front pay, back pay and counsel fees.  (See Motions no. 163 and 164).   It was not the court's intent to deprive the defendant of an opportunity to be heard on these issues.

Cosgrove, Emmet L., J.

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