Michael Tomick v. United Parcel Service, Inc. (2010)

MEMORANDUM OF DECISION RE BACK PAY, FRONT PAY AND REINSTATEMENT and MOTION TO TERMINATE STATE OF EXECUTION RE REINSTATEMENT

FACTS

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 General Statutes § 46a-60(a)(1).¹  The plaintiff also brought claims for negligent infliction of emotional distress and 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 for the plaintiff on July 9, 2010.   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 the 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.   The court reserved the issues of back pay, front pay and reinstatement.

The parties entered into a joint stipulation, entered as court exhibit seven and dated July 20, 2010, that is relevant to the issues of back pay, front pay and reinstatement.   The parties stipulated that the following facts are accurate:  as of August 1, 2009, the wage rate for a package car driver at UPS was $29.215 per hour, as of February 1, 2010, the wage rate for a package car driver at UPS was $29.59 per hour and as of August 1, 2009, UPS's contribution to the union's pension fund was $6.56 per hour, up to a maximum of forty hours per week.   The parties also agree that for each week the court finds that back pay and pension contributions are owed to the plaintiff, the award should be limited to forty hours per week.

The parties stipulate that for the period between September 2, 2009 and July 20, 2010, the amount of back pay may be owed to the plaintiff is $54,436.60, but that the amount owed should be offset by the plaintiff's interim earnings.   The parties agree that during that period, the plaintiff received interim earnings for his work at Engle Construction.   The plaintiff was and is paid $19 per hour and worked an average of thirty hours per week, which averages to $570 per week.   The parties agree that the plaintiff had interim earnings of $26,220 for the period between September 2, 2009 and July 20, 2010;  thus, the parties stipulate that the total amount of back pay that may be owed for that time period is $28,216.60.   The parties agree that the total pension contributions that may be owed are $12,070.40, payable to the New England Teamsters and Trucking Industry Pension Fund.

The plaintiff moved for back pay, front pay and/or reinstatement at oral argument on July 20, 2010.   The defendants filed a brief in opposition on July 27, 2010, and the plaintiff filed a memorandum in response on August 6, 2010.

DISCUSSION

Back Pay

The defendants argue that it is within the court's equitable discretion to deny the plaintiff an award of back pay.   The defendants argue that the plaintiff was unable to do his job the day before he was terminated and that he was unable to return to work for nearly five years.   Further, the defendants argue that the plaintiff has found other work and appears to be satisfied with that work.   Finally, the defendants argue that the plaintiff failed to mitigate his damages.   For these reasons, the defendants argue that the court should not award back pay.

The plaintiff argues that there is a strong presumption favoring back pay to victims of employment discrimination.   The plaintiff argues that the defendants have the burden of proving that he failed to mitigate damages and that he did, in fact, mitigate his damages.   Further, the plaintiff asserts that the back pay should include the payment of premiums for health benefits.

In Thames Talent, Ltd. v. Commission on Human Rights & Opportunities, 265 Conn. 127, 827 A.2d 659 (2003), the Connecticut Supreme Court discussed the remedies for discrimination in the workplace in the context of General Statutes § 46a-86.  Section 46a-86 sets forth procedures for hearings on discriminatory practices before the commission on human rights and opportunities.  “Under our laws prohibiting discrimination in the workplace, a hearing officer must construct a remedy for discriminatory employment practices in order to render a decree that will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in the future ․ This remedial goal is furthered by vesting in a hearing officer broad discretion to award reinstatement, back pay or other appropriate remedies specifically tailored to the particular discriminatory practices at issue ․ Thus, the overriding purpose of the statutory scheme is to restore those wronged to their rightful economic status absent the effects of the unlawful discrimination ․ Consequently, it is the responsibility of the commission to ensure that whatever remedy is fashioned for the employee be designed to return him or her to the same economic status he or she would have had in the workplace if [the] unlawful discrimination never occurred.”  (Citations omitted;  internal quotation marks omitted.)  Id., 136-37.

In this case, the plaintiff argues that he is entitled to back pay pursuant to General Statutes § 46a-104, which provides:  “The court may grant a complainant in an action brought in accordance with [General Statutes § ] 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.” ²  The Supreme Court has noted that “the legislative history surrounding the enactment of §§ 46a-100 through 46a-104 indicates that those provisions were intended to provide an additional forum for the resolution of discrimination complaints because of increasing delays in the processing of those complaints by the commission ․” Thames Talent, Ltd. v. Commission on Human Rights & Opportunities, supra, 265 Conn. 141 n.19. The parties do not dispute that it is within the court's discretion to order back pay.   The court will consider the remedial goals enunciated in Thames Talent in determining whether back pay is warranted in the present case.

The court finds that back pay is appropriate.   The defendants argue that the plaintiff failed to mitigate his damages, but the plaintiff found alternative employment with Engle Construction following his termination by UPS. Further, the plaintiff seeks back pay only for the time period when he could have physically resumed work at UPS. This is a limited period of time and the defendant will be credited for the income that the plaintiff received from working at the construction job.

With respect to medical premiums, the court will not award the amount requested by the plaintiff.   Had the discriminatory behavior not occurred and the plaintiff remained employed with UPS, the premiums would have been paid to the plaintiff's insurance provider, not to the plaintiff himself.   Thus, paying the premiums to the plaintiff at this juncture would not return him to the same economic status that he would have had if the unlawful discrimination never occurred.   To the contrary, the inclusion of back payment of medical premiums would result in awarding the plaintiff money that he would not have received had he remained employed at UPS.

The court finds that the plaintiff is entitled to back pay in accordance with the terms of the joint stipulation dated July 20, 2010.   The calculation of back pay for the plaintiff is currently based on a forty-hour work week at $29.59 per hour.   Additionally, contributions to the pension fund should be in the amount of $6.56 per hour, up to a maximum of forty hours per week.   Based on these figures, the plaintiff is entitled to a per diem rate of $236.72 in wages and $52.48 in contribution to the pension fund.

The plaintiff's wages, however, are offset by his earnings at Engle Construction, which amount to $570 per week, or $114 per day.   Accordingly, from July 21, 2010 to September 17, 2010, the plaintiff is entitled to $5,276.96 in wages and $2,256.64 in pension contributions.

The parties previously stipulated that the plaintiff is entitled to $28,216.60 in back pay for the period between September 2, 2009 and July 20, 2010.   This amount represents the calculation of the plaintiff's lost wages, offset by the plaintiff's interim earnings.   Additionally, the parties agree that the total pension contributions from September 2, 2009 to July 20, 2010 amount to $12,070.40.   With the addition of the plaintiff's back wages and pension contributions to date, the plaintiff is personally entitled to $33,439.56 in back wages and $14,327.04 in pension contributions, made payable to New England Teamsters and Trucking Industry Pension Fund, for a total of $47,766.60.

Front Pay or Reinstatement

With respect to front pay and reinstatement, the defendants argue that reinstatement is the preferred remedy.   Further, the defendants assert that the plaintiff's failure to mitigate his damages affect any award of front pay.   In response, the plaintiff argues that front pay is appropriate when animosity is displayed by the employer through the course of litigation.   The plaintiff argues that reinstatement would require the plaintiff to return to work and face his old supervisor, who testified for the defendants at trial, and that animosity exists between the plaintiff and UPS. The plaintiff seeks front pay in the amount of salary and benefits for ten years, reduced by the plaintiff's income from Engle Construction.   In the alternative, the plaintiff argues that reinstatement should be awarded, particularly in light of the fact that the defendants do not assert any specific reasons that the court should deny reinstatement.

The construction of our state's employment discrimination statutes is consistent with the federal courts' interpretation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.  Thames Talent, Ltd. v. Commission on Human Rights and Opportunities, supra, 265 Conn. 139.  “An award of front pay is a form of equitable relief ․ which is a matter for the trial judge's equitable discretion ․ Generally, front pay is awarded as a substitute remedy only when reinstatement is inappropriate ․ Front pay is an appropriate remedy when it would be inappropriate to reinstate a plaintiff due to excessive hostility or antagonism between the parties.”  (Citations omitted;  internal quotation marks omitted.)  Shaw v. Greenwich Anesthesiology Associates, P.C., 200 F.Sup.2d 110, 114 (D.Conn.2002).

In the present case, the court finds that the appropriate remedy is to reinstate the plaintiff's employment with UPS with his former job title and work location.   The defendant Trudelle is no longer employed by UPS at the Norwich facility.   Other current employees of UPS were called by UPS to testify in this case.   Their testimony was in certain instances at variance with the plaintiff's testimony as to what occurred almost five years ago and what the motivations were five years ago.   These differences, in the court's mind, are not a sufficient basis to prevent the plaintiff from returning to work.   The defense witnesses did not display excessive animosity or hostility towards the plaintiff during the trial although they disagreed with him.   The only example of “animosity” cited by the plaintiff is the testimony of the plaintiff's former supervisor, who is still employed by UPS. The plaintiff's concerns with facing his former supervisor upon his return to UPS does not rise to the level of “excessive hostility or antagonism.”   Thus, the court finds that reinstatement is the appropriate remedy in the present case.   The plaintiff's employment with UPS will be reinstated, contingent upon the plaintiff passing a physical for the job.

CONCLUSION

The court finds that back pay and reinstatement are the appropriate remedies in the present case.   Back pay is to be paid to or for the benefit of the plaintiff by the defendant as allocated above in the amount of $47,766.60 and the plaintiff's job with UPS is to be reinstated, pending a physical.   With regard to the order of reinstatement the court finds, pursuant to Practice Book 61-11(d) that the interests of justice require the stay of execution that would ordinarily follow any appeal from this judgment should be terminated.   The defendant is to schedule the plaintiff's physical examination forthwith and if the plaintiff passes the examination he shall be promptly reinstated to former position with the defendant United Parcel Service, Inc.

Cosgrove, J.

FOOTNOTES

FN1. Section 46a-60(a)(1) provides, in relevant part:  “It shall be a discriminatory practice in violation of this section ․ [f]or 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 ․ [f]or 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. Section 46a-100 provides:  “Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with [General Statutes § ]46a-82 and who has obtained a release from the commission in accordance with [General Statutes § ]46a-83a or [General Statutes § ]46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford.”.  FN2. Section 46a-100 provides:  “Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with [General Statutes § ]46a-82 and who has obtained a release from the commission in accordance with [General Statutes § ]46a-83a or [General Statutes § ]46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford.”

Cosgrove, Emmet L., J.