Oakes v. New England Dairies, Inc.

• Decision Date: 28 May 1991
• Docket Number: No. 14179,14179
• Citation: 591 A.2d 1261,219 Conn. 1
• Court: Connecticut Supreme Court
• Parties: Frank OAKES v. NEW ENGLAND DAIRIES, INC.

Page 1261

591 A.2d 1261

219 Conn. 1

Frank OAKES v. NEW ENGLAND DAIRIES, INC.

No. 14179.

Supreme Court of Connecticut.

Argued Feb. 21, 1991.

Decided May 28, 1991.

Clifford J. Grandjean, Hartford, for appellant (defendant).

Anne Goldstein, with whom was Jonathan L. Gould, Hartford, for appellee (plaintiff).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and BORDEN, JJ.

GLASS, Associate Justice.

The plaintiff, Frank Oakes, commenced this action in the Superior Court alleging that the defendant, his former employer, New England Dairies, Inc., had discharged him for exercising his workers' compensation rights in violation of General Statutes § 31-290a. ¹ After the jury returned a verdict awarding the plaintiff $67,500 in economic damages and $97,500 in noneconomic damages, the defendant moved for a new trial, to set aside the verdict, for judgment notwithstanding the verdict and for a remittitur. The trial court denied the motions and rendered judgment on the verdict for the plaintiff. In addition, the court awarded the plaintiff $40,000 in attorney's fees and granted his motion for reinstatement to his former position. The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

On appeal, the defendant claims that the trial court improperly: (1) instructed the jury as to the plaintiff's burden of proof under § 31-290a as well as the measure of the plaintiff's damages for lost wages; (2) instructed the jury respecting the plaintiff's burden of proving damages for emotional distress; (3) refused to set aside the verdict or order a remittitur because the verdict was contrary to the law and the evidence; and (4) ordered the plaintiff reinstated to his former position without inquiring into whether such relief was appropriate. ² We affirm.

The jury could reasonably have found that for approximately eleven years prior to May 10, 1985, the plaintiff had been employed by the defendant as a route truck driver. His primary task was to deliver milk products to the defendant's customers along a designated route. In 1978, the plaintiff injured his knee when he slipped in snow while unloading his truck. From 1980 to 1985, the plaintiff suffered several additional injuries in the course of this employment for which he missed approximately thirty-eight weeks of work and collected workers' compensation benefits. The plaintiff's concern with "losing time" prompted him some months before his discharge to approach Russell Roly, the defendant's vice president of distribution, with a request for a "job inside." Roly informed the plaintiff that a position in the defendant's shipping department might be available, but both Roly and the plaintiff agreed that such a position would be more difficult for the plaintiff.

On May 6, 1985, following a ten week absence caused by one of his injuries, the plaintiff was summoned to a meeting in Roly's office. Roly handed the plaintiff a memorandum entitled "Excessive Personal Injuries" that described each of the plaintiff's injuries and listed the corresponding number of weeks of workers' compensation benefits collected by him. ³ The plaintiff was informed that the defendant's workers' compensation carrier had been "putting pressure" on the defendant because of the number of injuries he had suffered, and he was given a choice between resignation and discharge. After consulting an attorney, the plaintiff informed Roly on May 10, 1985, that he had decided not to resign. Roly handed the plaintiff a second memorandum stating in part that it was "the opinion of [the defendant] that your chronic knee condition has rendered you unable to perform your duties assigned to you." ⁴ The plaintiff was then formally discharged. Accordingly, the plaintiff's medical, dental and life insurance coverage, as well as his vested pension rights, were terminated.

After his discharge, the plaintiff felt "desolate." He testified regarding his emotional state as follows: "I just didn't know what I was going to do because the only thing I knew how to do was drive; and I was forty-eight years old, and I was worried about when I go look for a job, not only my age, they're going to say, 'You worked eleven years at a place. Why did you leave?' And, 'I was fired.' ... I was depressed, I was sick over it." The plaintiff's depression manifested itself in stomach pains and he "passed out" on two occasions. The plaintiff's physician prescribed valium for his depression, and he took nonprescription medication for his stomach pains, which continued up to and including the date of trial.

The plaintiff's discharge also led to a search for alternative employment that he described as a "nightmare." The plaintiff's applications for employment at forty-four places of business were rejected before he finally secured a position in September, 1985, at the Douglas Battery Manufacturing Company. After almost two years in that position, the plaintiff was intermittently unemployed or employed at various other places of business. In all of his postdischarge positions, the plaintiff earned less money than he would have earned if he had continued to work for the defendant. He never obtained a position that included pension benefits, and some of his positions did not include medical or life insurance coverage. The plaintiff was unemployed at the time of trial. In the plaintiff's view, "people wouldn't hire [him]" due to his "age" and "the reason [he had] lost" his position with the defendant.

I

The defendant initially claims that the court improperly failed to instruct the jury on the plaintiff's burden of proof in a § 31-290a ⁵ action and the calculation of the plaintiff's damages for lost wages. The plaintiff responds that these claims are unpreserved, and hence unreviewable, because the defendant either did not request the particular instructions alleged to have been improperly omitted or did not take exception to the charge as given. Agreeing with the plaintiff, we do not reach the merits of the defendant's claims.

This court is not bound to consider claims challenging the failure to give an instruction "unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered." Practice Book § 315. An exception to a charge serves to alert the court to any claimed deficiency in the charge while there is still time for the court to take appropriate remedial action. See Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 237-38, 520 A.2d 1008 (1987). " 'The time has long since passed when a party can sit silent at the close of a charge and, if the verdict proves unpalatable, thereafter for the first time raise claims of error based on obvious inadvertencies in the charge.' " Scott v. Barrett, 212 Conn. 217, 222-23, 561 A.2d 941 (1989). Furthermore, a party may not secure a reversal on the basis of an alleged instructional defect induced by his own actions. Id., at 222, 561 A.2d 941; see Thompson v. Thompson, 183 Conn. 96, 99, 438 A.2d 839 (1981).

The defendant contends that the court improperly failed to instruct the jury that it was the plaintiff's ultimate burden in a § 31-290a action to prove that he "was the victim of discrimination 'either directly by persuading [the jury] that a discriminatory reason more likely motivated the [defendant] or indirectly by showing that the [defendant's] proffered explanation is unworthy of credence.' " Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 54, 578 A.2d 1054 (1990). The defendant's request to charge with respect to the burden of proof, however, allocated to itself the burden of proving "that it terminated the plaintiff for reasons other than his filing a workers' compensation claim" and "that the reason was more than a pretext...." In accordance with the defendant's request, the court allocated this burden to the defendant in its instructions, ⁶ and the defendant did not object or take an exception. Even if we were to assume that the court's instruction were incorrect, therefore, the defendant, having induced the court to give the instruction, cannot obtain a reversal on the ground that it was given in lieu of an instruction allocating the burden of proof to the plaintiff.

As for the defendant's claim that the court improperly omitted an instruction that, in calculating the plaintiff's lost wages, the jury should consider what portion of the loss was caused by his physical problems and employment preferences subsequent to his discharge, the defendant did not request such an instruction, and, again, the defendant did not take exception to the charge as given. The defendant's posttrial motions, moreover, were not, as claimed, the functional equivalent to an exception to the charge. See State v. Dabkowski, 199 Conn. 193, 198, 506 A.2d 118 (1986). Since the motions were filed subsequent to the verdict, they did not provide the court with a timely opportunity to remedy any omission determined improper. See Scott v. Barrett, supra, 212 Conn. at 222-23, 561 A.2d 941. At this late date, we, therefore, are not bound to consider the propriety of the omission. Practice Book § 315.

Finally, we reject the defendant's contention that either of the above claims are reviewable as plain error under Practice Book § 4185. ⁷ We are not persuaded that the interests of justice require a review of the defendant's claim regarding the omission induced; see Scott v. Barrett, supra; nor do we find, after a careful review of the record, that the omission with respect to the calculation of the plaintiff's lost wages impaired the effectiveness or integrity of the trial. See State v. Foreshaw, 214 Conn. 540, 547, 572 A.2d 1006 (1990). Consequently, we decline to review the defendant's claims on their merits.

II

The defendant next challenges another omission in the court's instructions to the jury. The defendant's claim, as refined at...