Michael Tomick v. United Parcel Service et al. (2013)

MEMORANDUM OF DECISION RE REMAND FROM APPELLATE COURT

In this employment termination and discrimination action, following a jury trial, the defendants, United Parcel Service, Inc., and Kevin Trudelle, appealed from the judgment entered by the court in favor of the plaintiff, Michael Tomick.   The plaintiff filed a cross appeal.   The Appellate Court affirmed in part, reversed in part and remanded the matter regarding the motion of the defendant United Parcel Service, Inc. (defendant),¹ to direct the verdict as to the plaintiff's claim under General Statutes § 46a–60.   Tomick v. United Parcel Service, Inc., 135 Conn.App. 589, 612–13, 43 A.3d 722, cert. denied, 305 Conn. 920, 47 A.3d 389 (2012).

At the conclusion of the plaintiff's case the defendants moved for a directed verdict.   The defendants claimed they were entitled to a directed verdict on the disability discrimination claim because the plaintiff could not perform the essential functions of the job, with or without a reasonable accommodation on the date of the adverse employment decision, December 3, 2004.   The court heard argument and reserved decision.   After the jury rendered its verdict the trial court orally denied the motion for a directed verdict.   Thereafter the defendants moved to set aside the verdict with regard to the disability discrimination claim on the same grounds that it had moved for a directed verdict.   The court issued a written memorandum denying the motion to set aside the verdict [51 Conn. L. Rptr. 28].

The Appellate Court determined that the court used the standard for evaluating a claim for negligent infliction of emotional distress (termination process) rather than the standard appropriate for a disability discrimination claim—was the individual a qualified individual on the date of the adverse employment decision.

“We conclude, therefore, that the court abused its discretion in applying the ‘termination process' standard applicable to claims of negligent infliction of emotional distress to the plaintiff's disability discrimination claim.   Absent factual findings as to December 2, 2004, or December 3, 2004, the record is inadequate to ascertain whether the plaintiff would prevail under the correct legal standard.   Accordingly, we remand the matter to the trial court to determine the date of the adverse employment decision and whether the plaintiff was qualified at that time.”  Tomick v. United Parcel Service, Inc., supra, 135 Conn.App. 612–13.

Pursuant to the remand from the Appellate Court, the court will review the evidence available to the jury as to the date of the adverse employment decision and whether or not the plaintiff was a qualified person on that date.

Standard of Review

Our case law regarding the role of a court in directing a verdict or setting aside a verdict is clear.   A trial court reviewing a motion for a directed verdict or to set aside a 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.)  Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000).

“[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, [i]n reviewing the jury verdict, it is well to remember that [j]urors 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).  “A trial court may set aside or direct a verdict on a finding that ․ there is no evidence to which the legal principles of the case can be applied.”  (Internal quotation marks omitted.)  Haynes v. Middletown, 142 Conn.App. 720, 730 (2013).  “A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict.”  (Internal quotation marks omitted.)  Beale v. Yale–New Haven Hospital, 89 Conn.App. 556, 566, 874 A.2d 259 (2005).

The defendant argues that on remand the court should grant its motion for directed verdict because the plaintiff failed to establish a prima facie case of disability discrimination under § 46a–60 because the plaintiff was not a qualified individual with a disability who could perform the essential functions of his job on the date of the adverse employment decision, December 3, 2004.   The plaintiff counters that the court should deny the defendant's motion for a directed verdict because the plaintiff made a prima facie case of disability discrimination and the jury found that the defendant's termination of the plaintiff was motivated by his disability.

FACTS

The Appellate Court set forth the facts that the jury could have reasonably found in its May 22, 2012 decision.  Tomick v. United Parcel Service, Inc., supra, 135 Conn.App. 593–600.   Relevant to this remand, such facts are summarized as follows.   The plaintiff worked as a package car driver for the defendant, and his “essential job functions included lifting packages weighing up to seventy pounds and bending, stooping, crouching, squatting, climbing and pivoting for up to nine and one-half hours per day.”  Id., 594.   The plaintiff injured his back during the course of his employment on January 3, 2003.   Following a leave of absence, the plaintiff returned to work with no restrictions in November 2003, but he received a 13 percent permanent disability of his lumbar spine.  Id.

On November 30, 2004, during a package delivery, the plaintiff suffered another injury to his back when he stepped off a stoop.   The plaintiff sent an electronic message to the defendant regarding his back situation, and then, he completed his route.   During the evening of November 30, 2004, Trudelle, a manager, discussed the injury with Michael Herbert, the plaintiff's direct supervisor.   On December 1, 2004, the plaintiff requested the day off because of his back pain.   The absence was approved by Trudelle.   The plaintiff was instructed to seek medical treatment, which he did at Pequot Medical Center.   The plaintiff informed the treating physician at Pequot Medical Center that he needed to be released for full duty because it was the defendant's busy season, and the plaintiff informed the treating physician that the plaintiff would be able to perform his job with a helper.   The plaintiff was released for full duty.   The plaintiff informed Trudelle that the plaintiff was released for full duty and requested a helper.   Trudelle told the plaintiff that a helper would be assigned, but Trudelle took no steps to ensure that a helper would be provided for the plaintiff's route.  Id., 594–95.

Additionally on December 1, 2004, Herbert investigated the scene of the plaintiff's fall.   In an e-mail to Trudelle, Herbert attached photos and offered his opinion that the plaintiff's version of the accident was untrue.   Herbert offered his opinion that the accident could be attributed to the plaintiff's carelessness.   Trudelle's response e-mail stated, “[g]reat job with this investigation.   Do no[t] show [the plaintiff] this but print the write up and pictures and put it in his file.”  Id., 595.   In preparation for the defendant's standard conference call to discuss injuries that occurred the previous day, Trudelle obtained the plaintiff's injury history report.   The report, generated by the human resources department, documented the injuries that the plaintiff suffered during his employment with the defendant.  Id., 595–96.

The plaintiff returned to work on December 2, 2004, where he was informed that he would have a helper.   Herbert accompanied the plaintiff for the morning portion of his route to evaluate his knowledge of safety methods, which was standard practice following an injury.   Following the completion of the training, the plaintiff was instructed by Herbert to meet a helper at noon.   A helper was not at the meeting location, and the plaintiff contacted the defendant's center by electronic message and then telephoned Trudelle.   Trudelle informed the plaintiff that this was the first he was hearing that the plaintiff did not have a helper, and the plaintiff was transferred to Mark Appleton, the helper coordinator and a human resources supervisor.   Appleton began looking for a helper because he was not aware that the plaintiff was supposed to have been assigned one that day.  Id., 596.

Following a telephone call to his wife regarding his lack of a helper and his significant back pain, the plaintiff went home for lunch as usual.   The plaintiff sent several messages to the defendant's center regarding his need to come off the road and see a physician.   While the plaintiff was going home for lunch, the plaintiff received a message telling him to call Trudelle immediately.   Before the plaintiff arrived home, his wife telephoned Trudelle and told him that she thought that her husband was being singled out, and she thought that he was going to have a nervous breakdown.   During the conversation, Trudelle told the plaintiff's wife that the plaintiff was not being truthful and that Trudelle had gone “above and beyond” to help the plaintiff.   The plaintiff arrived home and found his wife crying, and she informed him about her conversation with Trudelle.   The plaintiff telephoned Trudelle from home and informed him that his back was still hurting and that he needed to see a physician.   Trudelle told the plaintiff that if he “couldn't do the fucking job, bring the fucking truck back to the building.”  Id., 597.   Trudelle asked if the plaintiff wanted someone to come pick up the truck or if the plaintiff would bring it back to the defendant's center;  the plaintiff informed Trudelle that he would bring it back following his lunch break.   Id.

Upon his return to the defendant's center, the plaintiff found another driver ready to take over his route.   The plaintiff, while upset and in physical pain, spoke with Trudelle regarding what was happening because the plaintiff thought that a helper was being assigned to his route.   Trudelle told the plaintiff that his wife had said that the plaintiff was having a nervous breakdown.   The plaintiff told Trudelle that he was at his wit's end and needed to be seen by a physician for his back pain.   Trudelle told the plaintiff that he was acting irrationally.   Trudelle told the plaintiff that he would be sent for a fitness for duty test and substance abuse test.  “The plaintiff maintained that he would not go for a fitness for duty test, and Trudelle told him that if he did not go he could be fired.   At that point, the plaintiff believed that his employment had been terminated.”  Id., 598.   The plaintiff left Trudelle's office and the building yelling and swearing.   The plaintiff could not reach his union steward by telephone and telephoned his wife, who reviewed the collective bargaining agreement.   The plaintiff's wife told him that refusal of a fitness for duty test could be a ground for discharge.  Id., 597–98.

Trudelle, following the plaintiff to the parking lot, was on the telephone with Charles A. Sheahan, district manager, describing what was happening.   Trudelle, per Sheahan's instructions, told the plaintiff that the state police would be called if the plaintiff got into his car.   Trudelle told the plaintiff that Trudelle would accompany the plaintiff for an immediate fitness for duty test and drug test.  “When the plaintiff again refused, Trudelle told him he was fired.”  Id., 598.   The plaintiff again believed his employment with the defendant had been terminated.  “The plaintiff, while standing approximately ten yards from Trudelle, said, ‘I should have kicked your ass for what you said to my wife earlier today.’   Trudelle then told Sheahan over the telephone that the plaintiff said he ‘might kick [Trudelle's] ass,’ and the plaintiff corrected him and said, ‘I didn't say I was going to kick your ass.   I said I shoulda.’  “ Id., 598.

Ray Congdon, a supervisor, who had been in the parking lot during the exchange, offered to accompany the plaintiff to the clinic instead of Trudelle.   The plaintiff agreed, and he was seen at the clinic by Geraldine S. Ruffa, a physician, who examined the plaintiff and determined it was not necessary to administer a urinalysis drug test.   Ruffa released the plaintiff back to work on a modified duty status, including a lifting restriction of no more than fifteen pounds and minimal bending, squatting and twisting, and the plaintiff was to be reexamined on December 8, 2004.   Ruffa prescribed two medications that the plaintiff was not to take at work or while driving because they cause drowsiness.   Congdon informed Trudelle that Ruffa did not believe it was necessary to perform the urinalysis drug test because the plaintiff's behavior was explained by his back pain.   Trudelle told Congdon to inform the plaintiff to call the defendant's center at 9 a.m. on December 3, to be told when to report for light duty.  Id., 598–99.

Following his conversation with Congdon, Trudelle spoke with Sheahan and Nick Reut, the district labor manager, and it was decided that the plaintiff's employment should be terminated for workplace violence.   At 8:20 a.m., on December 3, 2004, the plaintiff arrived at the defendant's center to speak with a union representative, which he was able to do briefly, until Trudelle told him that the union representative had work to do.   Trudelle requested the plaintiff leave the building and told him to call at 9 a.m., which the plaintiff did.   Trudelle told the plaintiff to return to the defendant's center at approximately 2 p.m. for temporary alternate work.   Upon returning to the defendant's center, the plaintiff met with Trudelle, Victor Birch, the district risk manager, and John Fitzgerald, a union representative.   The plaintiff was asked about his injury and the events of December 2, and he was asked if he would submit to a fitness for duty test, which the plaintiff agreed to.   Trudelle and Birch conferred outside of the meeting room, and when they returned Trudelle informed the plaintiff that he would not be sent for the fitness for duty test and he was being terminated for violating the defendant's policy against workplace violence because of the December 2, 2004 altercation.   This litigation followed.  Id., 599–600.

DISCUSSION

Discrimination based on disability in employment is prohibited by § 46a–60, which provides in relevant part:  “(a) It shall be a discriminatory practice in violation of this section:  (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to ․ discharge from employment any individual ․ because of the individual's ․ physical disability ․”

“Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.” ²  Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996).  “Under the analysis of the disparate treatment theory of liability, there are two general methods to allocate the burdens of proof:  (1) the mixed-motive/Price Waterhouse model;  Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989);  and (2) the pretext/McDonnell Douglas–Burdine model.  Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252–56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981);  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).”  Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 104–05.

“A ‘mixed-motive’ case exists when an employment decision is motivated by both legitimate and illegitimate reasons.   See Price Waterhouse v. Hopkins, supra, 490 U.S. 228 (plurality opinion).   In such instances, a plaintiff must demonstrate that the employer's decision was motivated by one or more prohibited statutory factors.   Whether through direct evidence or circumstantial evidence, a plaintiff must ‘submit enough evidence that, if believed, could reasonably allow a [fact finder] to conclude that the adverse employment consequences resulted ‘because of an impermissible factor.’   “ Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 105.

Nevertheless, under the pretext model, “a plaintiff may establish a prima facie case of discrimination through inference by presenting facts [that are] sufficient to remove the most likely bona fide reasons for an employment action ․

“The plaintiff need prove only four elements by a preponderance of the evidence:  (1) that he or she belongs to a protected class;  (2) that he or she applied and was qualified for the position in question;  (3) that despite his or her qualifications, the individual was rejected;  and (4) that after the individual was rejected, the position remained open ․ Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created.

“Under the McDonnell Douglas–Burdine model, the burden of persuasion remains with the plaintiff ․ Once the plaintiff establishes a prima facie case, however, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating (not proving) some legitimate, nondiscriminatory reason for the plaintiff's rejection ․ Because the plaintiff's initial prima facie case does not require proof of discriminatory intent, the McDonnell Douglas–Burdine model does not shift the burden of persuasion to the defendant.   Therefore, [t]he defendant need not persuade the court that it was actually motivated by the proffered reasons ․ It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff ․ Once the defendant offers a legitimate, nondiscriminatory reason, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the proffered reason is pretextual.”  (Citations omitted;  internal quotation marks omitted.)  Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 107–08.

The defendant argues that the plaintiff has failed to establish a prima facie case under either standard because the plaintiff was not a qualified individual on the date of the adverse employment decision.   The defendant argues that the date of the adverse employment decision was December 3, 2004 and that the plaintiff was not qualified because he was unable to perform the essential job functions on that date.   The defendant also argues that the plaintiff was neither qualified on December 1, 2004, because he was unable to work nor qualified on December 2, 2004, because he was unable to complete his shift.

The plaintiff argues that the court should apply the mixed-motive framework in the present case because there is overwhelming evidence to support the jury's finding that the plaintiff's disability played a role in the defendant's decision to terminate the plaintiff.   The plaintiff argues that the jury found that the plaintiff's disability was a motivating factor in the defendant's decision to terminate.   The plaintiff argues that even under the pretext model the plaintiff has established his prima facie case;  the plaintiff argues that he did not have to prove he was qualified, and it was the defendant's burden to prove that the plaintiff could not perform the essential functions of his position, which were bona fide occupational qualifications.   The plaintiff additionally argues that “qualified” refers to the knowledge and skills to perform the job rather than physical qualifications.

The court will apply the pretext/McDonnell Douglas–Burdine model to determine whether the plaintiff made his prima facie case of disability discrimination to the jury and, therefore, whether the defendant is entitled to a directed verdict on the plaintiff's disability discrimination claim.   The court finds this is the appropriate test because here the defendant has offered evidence that it terminated the plaintiff for violation of its workplace violence not as a defense but rather as a response to the plaintiff's claim that the firing was pretextual.   Whether analyzed under the pretext/McDonnell Douglas–Burdine model or the mixed-motive/Price Waterhouse model, the plaintiff has the burden of proving his qualifications to perform the essential job duties on the date of the adverse employment decision.

In applying the pretext/McDonnell Douglas–Burdine model, the court will address the two specific issues on remand based upon the evidence presented to the jury, which included the medical records of the plaintiff, testimony of the plaintiff and the credibility or lack of credibility of several of the plaintiff or the defendant's witnesses.   The court also notes that the jury found in response to interrogatories regarding the plaintiff's disability discrimination claim that the plaintiff's disability motivated the defendant's decision to terminate.   The jury also found in response to an interrogatory that defendant's actions were a wilful violation of the plaintiff's rights.³  These findings, supported by the evidence clearly evince the jury's rejection of the defendant's position with regard to the termination.

The Date of the Adverse Employment Decision

The defendant did not request that jury interrogatories be submitted to the jury to determine the date of the adverse employment decision.   The court will therefore review the evidence available to the jury and the reasonable inferences that might be drawn therefrom.   Further the court is mindful that the jury is charged with determining the credibility of witnesses.

There was evidence before the jury that the defendant's employees had labeled the plaintiff as a “repeater” in the December 1, 2004 conference call, that the defendant's employees had reached a judgment that the plaintiff's description of the November 30 injury was inaccurate, and on December 2, 2004, that Trudelle failed to provide the plaintiff with the helper that Trudelle had promised.   On December 2, 2004, there was evidence from which the jury concluded that the defendant's employees demanded that the plaintiff take a urinalysis test without reasonable suspicion and that Trudelle, the plaintiff's supervisor, told the plaintiff he was fired and that the plaintiff believed he had been terminated.   Additionally, there was evidence that on December 3, 2004, before the defendant's employees communicated the termination decision in the presence of the union representative, the plaintiff was again asked hypothetically if he would take a fitness for duty or urinalysis test when there was no reasonable suspicion to request the test.

This court finds that the jury could have reasonably could have found that the adverse employment decision, i.e., the decision to terminate the plaintiff, occurred on December 1 and was communicated to plaintiff by his supervisor in the parking lot on December 2, 2004.   The meeting in the presence of the union representative on December 3, 2004 confirmed or ratified the earlier decision communicated to the plaintiff on December 2, 2004.

Was the plaintiff a qualified person on December 2, or 3?

The defendant did not request that jury interrogatories be submitted to the jury with regard to whether the plaintiff was a qualified individual on the date of the adverse employment decision.   The court will therefore review the evidence available to the jury and the reasonable inferences that might be drawn therefrom.   Further the court is mindful that the jury is charged with determining the credibility of witnesses.

From the testimony of the plaintiff, other witnesses and the medical records, the jury had before it evidence regarding the physical abilities of the plaintiff.   The jury reasonably could have found that, the plaintiff completed his normal work route on November 30, 2004 but reported he had tweaked his back.   Although he did not work on December 1, 2004, the plaintiff was released to work without restrictions by the physician who examined him that day.   This information was communicated to the defendant on December 1, 2004.   On December 2, 2004, the plaintiff reported for work and commenced working.   On the afternoon of December 2, 2004, after the confrontation with Trudelle in the parking lot, there was evidence from the physician that the plaintiff had physical restrictions that prevented him from fully performing the functions of his job at least until his next physician's appointment.   The physician placing restrictions scheduled the plaintiff to be seen and reevaluated on December 8, 2004.

From this evidence before the jury, this jury could reasonably find that the plaintiff was qualified to perform the essential job functions on December 1 and December 2, 2004.   When the plaintiff arrived to work on December 2, 2004, he was qualified to perform the essential job functions of a package car driver as he had been fully cleared to return to work after having been seen by a physician on December 1, 2004.   He was promised an assistant for his route but that promise was broken by the defendant.

The jury had before it evidence that as of the late afternoon of December 2, 2004 the plaintiff was placed under medical restrictions and medications that would have prevented the plaintiff from performing the essential functions of the package car driver position.   Given the fact that the physician wanted to see the plaintiff in one week, a jury might reasonably have concluded that the plaintiff's disability would be temporary in nature.   While subsequent evidence indicated that the plaintiff was not cleared to return to employment for a substantial period of time after his termination, the jury could have considered the emotional and physical distress caused by the defendant's negligent infliction of emotional distress during the termination process as a potential cause of the longer period of disability.

Accordingly, the plaintiff has established his prima facie case for disability discrimination because the jury could have reasonably found that the plaintiff was qualified to work on December 2, 2004 when the defendant terminated the plaintiff based on his history of having a disability.   The defendant's motion for a directed verdict is denied.

The Court

Cosgrove, J.

FOOTNOTES

FN1. For the purposes of this memorandum, “the defendant” shall refer to United Parcel Service, Inc., because it is the sole defendant in the remanded count..  FN1. For the purposes of this memorandum, “the defendant” shall refer to United Parcel Service, Inc., because it is the sole defendant in the remanded count.

FN2. The federal cases, McDonnell Douglas and Price Waterhouse, involved decisions in courtside trials.   In each of these cases, the United States Supreme Court provided guidance to the trial courts as to the admissibility of evidence and the burdens of proof and persuasion.   The right to a jury trial was allowed when 42 U.S.C. § 1981a was amended as a part of the Civil Rights Act of 1991..  FN2. The federal cases, McDonnell Douglas and Price Waterhouse, involved decisions in courtside trials.   In each of these cases, the United States Supreme Court provided guidance to the trial courts as to the admissibility of evidence and the burdens of proof and persuasion.   The right to a jury trial was allowed when 42 U.S.C. § 1981a was amended as a part of the Civil Rights Act of 1991.

FN3. The jury answered the following interrogatories on the plaintiff's verdict form dated July 9, 2010:(10) Was Michael Tomick's physical disability a motivating factor in the defendant's decision to terminate his employment?   Answer:  Yes ․ (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?   Answer:  Yes ․.  FN3. The jury answered the following interrogatories on the plaintiff's verdict form dated July 9, 2010:(10) Was Michael Tomick's physical disability a motivating factor in the defendant's decision to terminate his employment?   Answer:  Yes ․ (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?   Answer:  Yes ․

Cosgrove, Emmet L., J.