Thigpen v. United Parcel Services, Inc.

• Decision Date: 10 September 2008
• Docket Number: No. 4D06-3933.,4D06-3933.
• Citation: 990 So.2d 639
• Parties: John THIGPEN, Appellant, v. UNITED PARCEL SERVICES, INC., Appellee.
• Court: Florida District Court of Appeals

990 So.2d 639

John THIGPEN, Appellant, v. UNITED PARCEL SERVICES, INC., Appellee.

No. 4D06-3933.

District Court of Appeal of Florida, Fourth District.

September 10, 2008.

Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Russell S. Adler and Shawn L. Birken of Rothstein Rosenfeldt Adler, Fort Lauderdale, for appellant.

Christopher N. Bellows, Kelly-Ann G. Cartwright and Erika R. Royal of Holland & Knight LLP, Miami, for appellee.

TAYLOR, J.

Plaintiff, John Thigpen, appeals the trial court's order setting aside a jury verdict for plaintiff and granting the defendant, United Parcel Services, Inc. (UPS,) a new trial. The trial court granted the new trial after determining that it had erroneously admitted irrelevant and unfairly prejudicial evidence, which resulted in an excessive verdict. Because we conclude that the trial court did not abuse its discretion in granting a new trial, we affirm.

Plaintiff sued UPS for allegedly retaliating against him for filing workers' compensation claims, in violation of section 440.205, Florida Statutes. He alleged that his UPS supervisors fabricated evidence that he failed to report non-delivery of a package and then terminated him upon pretextual grounds. The jury found UPS liable and returned a verdict of $6 million for the plaintiff.

Plaintiff had worked for UPS for twenty years, fifteen of those years as a delivery driver at the UPS center in Deerfield Beach. In July 2001, he was terminated for misrepresenting his delivery records. According to plaintiff's supervisor, Bruce McGraw, the plaintiff's Diad record reflected that he had made more signed deliveries than he actually had.¹ UPS characterized this conduct as dishonest and tantamount to "stealing time" from the company. After a grievance through the union, the termination was set aside and plaintiff returned to work in October 2001.

In October 2001, plaintiff was terminated again for misrepresenting delivery records. According to plaintiff's supervisor, Chris Gerkin, a customer called on Monday, October 15, about a package containing medicine that had not been delivered. Plaintiff insisted that the package was not on his truck on October 15, but Gerkin said that he found the package on plaintiff's truck that evening. Because the tracking records indicated that plaintiff had made no attempt to deliver the package, yet failed to report the non-delivery, plaintiff was terminated. This time the termination was upheld after a union grievance hearing.

Plaintiff sued UPS, claiming that the company terminated him in July and October 2001 in retaliation for filing workers' compensation claims. He asserted that the stated ground for his discharge-dishonest conduct in reporting deliveries-was pretextual and predicated on events contrived by his supervisors. To support these assertions, plaintiff presented evidence on his theory of the company's motivation for terminating him and the method they used to bring about his termination.

At trial, plaintiff introduced evidence to show that he was terminated because of a campaign initiated by UPS to crack down on employees who were "injury repeaters." These were employees who had sustained multiple injuries on the job and frequently sought workers' compensation benefits. Plaintiff introduced an e-mail issued on May 1, 2001, by the package division manager for South Florida. The e-mail complained about the high incidence of "injury repeaters" and instructed managers and supervisors to monitor these employees and get them to improve their safety and work habits or to discharge them. Plaintiff also presented the testimony of UPS employees who attended a company meeting, where Bruce McGraw repeated the company's concern about excessive injuries and announced plans to address the problem.

Plaintiff's last work-related injury occurred on December 28, 2000, when he hurt his ankle stepping off his truck. He visited the company doctor and received pay for two days of work. Before that, plaintiff had last filed a claim for workers' compensation benefits in 1997. At trial, there was conflicting testimony regarding whether plaintiff, who had been injured only seven times during his twenty years on the job, even met the company's definition of an "injury repeater."

To prove his claim that UPS terminated him under false pretenses, as part of its plan to target "injury repeaters", plaintiff presented the deposition testimony of a former UPS supervisor, Guy Findeisen. Findeisen testified that he had worked at a UPS center in Hialeah as a driver and supervisor until he left in 1987. He said that when he was there, his supervisor, Bill Hughes, taught him a way to set up an undesirable employee for termination through a "presheet audit," and that that he had personally "built the case" for truckers to be terminated through a fraudulent presheet audit. Findeisen explained how he would remove a package from the driver's truck after it had already been loaded and then falsify the records to make it appear that the driver had not bothered to deliver it. He testified as follows:

How the presheet audit, how the fabrication went. I go into your truck, I pick out five, six areas. Again, this time the package, one of the small packages, ABC, make sure it has a sequence number on it. I would hide it in my drawer. When the driver came back that night, I would say look Juan or whatever, you have a presheet audit, here are the numbers I'm looking for, I'll be back in minute ... go back in the truck, take the package and throw it back in again ... He's definitely going to come up one short because it was not in the truck, so when that happened, it became an integrity problem.

Findeisen testified that he did this about five times and that he knew of at least two employees who were discharged as a result. He said he also knew other supervisors at his facility who had set up drivers in this same way, and that it was an "unwritten rule at UPS" and "an easy way to get rid of somebody." Findeisen testified that when he heard about the plaintiff's termination, he recognized that it was the exact same method he used to terminate employees. Findeisen acknowledged that he had no knowledge of supervisors at any UPS center other than his facility in Dade County setting up drivers in this fraudulent manner. He said that he was never told by anyone—not even his supervisor, Bill Hughes—to discriminate against a driver because of workers' compensation. He further testified that he did not know any of the supervisors in the Deerfield facility where plaintiff worked, and that he had never worked with them or at their facility. Findeisen testified that he did not know if plaintiff's superiors had ever engaged in a deceitful termination. He conceded that he had no knowledge of the actual facts surrounding the plaintiff's discharge.

Before trial, UPS filed a motion in limine to exclude Guy Findeisen's testimony. UPS contended that his testimony was irrelevant to any issue in the present case and that plaintiff sought to introduce evidence of Findeisen's misconduct solely to suggest that UPS supervisors McGraw and Gerkin had a propensity for lying, fabricating evidence, and framing drivers in the same way as Findeisen. UPS argued that Findeisen's wrongdoing in Hialeah back in 1987 had nothing to do with the conduct of McGraw and Gerkin in Deerfield Beach in 2001. It maintained that Findeisen's misconduct was too remote in time and place to be relevant and was unconnected to any retaliation for filing workers' compensation claims. UPS further argued that any probative value of this testimony would be substantially outweighed by the danger of unfair prejudice.

The trial court denied UPS's motion in limine and allowed Findeisen's testimony into evidence at trial. The jury found UPS liable for unlawful workers' compensation retaliation and awarded the plaintiff $669,660.98 in economic damages, plus $5,330,339.02 in non-economic damages, for a total verdict of $6 million.

After the verdict, UPS filed motions for a new trial. The trial court granted its motion for a new trial, finding that Findeisen's testimony of fraud, fabrication, and wrongful terminations in Hialeah in 1987 was not relevant to the present case, and that, even if such testimony was relevant, its probative value was outweighed by its prejudicial effect. In its written order granting a new trial, the court stated:

This court finds that the jury award of $5,330,339.02 in non economic damages was so excessive that it shocks the conscience of the court and could have been awarded only by a jury that had been inflamed by passion or prejudice. The court finds that the passion or prejudice was so great that there is a substantial likelihood that it affected the jury's determination of liability.

This court also finds that there is a substantial likelihood that the deposition of Guy Findeisen, which was read into evidence at trial, is what inflamed the jury. In his deposition, Mr. Findeisen told of his personal actions in wrongfully terminating four or five UPS employees. Mr. Findeisen's misconduct was not relevant in this case, and, even if it were, any probative value was greatly outweighed by the prejudicial effect of the misconduct.

Plaintiff appealed the order for a new trial, arguing that the trial court erred in reversing its ruling on the admission of Guy Findeisen's testimony. He further argues that the trial court erred in granting a new trial based on its determination that the jury's award for non-economic damages was excessive and in denying his motion for leave to amend to seek punitive damages.

Appellate review of an order granting a motion for a new trial is based on an abuse of discretion standard. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980) (explaining that "[t]he trial judge is granted this discretionary power because it is impossible to establish a strict rule of law for every conceivable...