Tomick v. United Parcel Serv., Inc., AC 35896

CourtAppellate Court of Connecticut
Writing for the CourtDiPENTIMA, C. J.
Decision Date19 May 2015
PartiesMICHAEL TOMICK v. UNITED PARCEL SERVICE, INC., ET AL.
Docket NumberAC 35896

MICHAEL TOMICK
v.
UNITED PARCEL SERVICE, INC., ET AL.

AC 35896

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued October 20, 2014
May 19, 2015


DiPentima, C. J., and Beach and Prescott, Js.

(Appeal from Superior Court, judicial district of New London, Cosgrove, J.)

Michael C. Harrington, with whom were Stella Szantova Giordano and, on the brief, Jennifer A. Corvo, for the appellant-appellee (named defendant).

Michael D. Colonese, with whom, on the brief, was Cassie N. Jameson, for the appellee-appellant (plaintiff).

Marc P. Mercier filed a brief for the Connecticut Employment Lawyers Association as amicus curiae.

Charles Krich, principal attorney, filed a brief for the Commission on Human Rights and Opportunities as amicus curiae.

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Opinion

DiPENTIMA, C. J. This employment discrimination case returns to this court following our remand to the trial court for a determination of the "date of the adverse employment decision" and whether the plaintiff was qualified to perform the essential duties of his position at that time. Tomick v. United Parcel Service, Inc., 135 Conn. App. 589, 613, 43 A.3d 722 (Tomick I), cert. denied, 305 Conn. 920, 47 A.3d 389 (2012). We instructed the court that it was "not precluded from reconsidering the issue of which analytical framework should be applied and what each framework requires the plaintiff to establish to make out a prima facie case." Id., 613 n.17. On appeal, the defendant United Parcel Service, Inc.,1 argues that the trial court abused its discretion in denying the defendant's motion for a directed verdict because the plaintiff, Michael Tomick, failed to establish a prima facie case of disability discrimination pursuant to General Statutes § 46a-60.2 Specifically, the defendant claims that the court erred in finding that (1) the adverse employment action occurred on December 1 or 2, 2004, and (2) the plaintiff was qualified to perform the essential functions of his job on that date. In his cross appeal, the plaintiff argues that the court improperly set aside the award of punitive damages on the ground that such an award was not authorized by General Statutes § 46a-104. We affirm the judgment of the court.

The plaintiff brought this employment discrimination action against the defendant, claiming, inter alia, that the defendant terminated his employment in violation of § 46a-60 (count six). The facts that the jury reasonably could have found were set forth by this court in Tomick I and are as follows: The plaintiff worked as a package car driver for the defendant. "On January 3, 2003, the plaintiff suffered a back injury during the course of his employment. He received a 13 percent permanent disability of his lumbar spine. The plaintiff took a leave of absence until November, 2003, when he returned to work with no restrictions.

"On November 30, 2004, the plaintiff reinjured his back when he stepped off a stoop while delivering a package. He sent an electronic message to the [defendant's Norwich] center informing the defendant of his situation and completed his route. That evening, [Kevin] Trudelle [the business manager of the defendant's Norwich/Niantic center] discussed the injury with Michael Hebert, the plaintiff's direct supervisor, and Hebert notified the defendant's insurance carrier of the accident.

"The next morning, December 1, the plaintiff was experiencing back pain. He called the center to request the day off to recover. Trudelle approved the absence and instructed the plaintiff to seek medical treatment. The plaintiff was examined at Pequot Medical Center,

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where he indicated to the treating physician that he needed to be released for full duty because it was the peak season for the defendant's business. The plaintiff told the physician that he would be able to perform his job with a helper, and the physician released the plaintiff for full duty. The plaintiff called Trudelle to inform him that he was released for full duty and requested a helper for the day. Trudelle told the plaintiff that he would have a helper that day, but he did not then take any steps to ensure that the plaintiff would be assigned a helper to his route. . . .

"On December 2, the plaintiff returned to work. When he arrived that morning, he was told by both the preloader who was loading his truck and Hebert that he was going to have a helper. Because the plaintiff was returning to work after an injury, Hebert accompanied the plaintiff for a portion of his route that morning to evaluate his knowledge of safety methods, as was standard practice.

"After completing the training, Hebert instructed the plaintiff to meet a helper at a specified location at noon. The helper was not in the designated meeting location at that time, so the plaintiff contacted the center by electronic message. The plaintiff also called Trudelle to inquire about the helper. Trudelle told the plaintiff that it was the first he had heard that the plaintiff did not have a helper and transferred him to Mark Appleton, a human resources supervisor and the helper coordinator. Appleton was not aware that the plaintiff was supposed to be assigned a helper that day, but began looking for a helper.

"At that time, the plaintiff called his wife. He told her that he had not been assigned a helper that day and that he was in significant pain. He also told her he would be coming home for lunch, as was typical. The plaintiff then sent several messages to the center to communicate that he was going home for lunch, that he needed to come off the road and that he needed to see a physician. On the way to his home, the plaintiff received a message instructing him to call Trudelle immediately.

"When the plaintiff arrived home, he found his wife crying, and she told him that she had called Trudelle. The plaintiff's wife told Trudelle that she thought her husband was being singled out and that she thought he was going to have a nervous breakdown. Trudelle told the plaintiff's wife that the plaintiff was not being honest and that he had gone 'above and beyond' to help the plaintiff. The plaintiff called Trudelle from his home, as instructed, and told 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, [to] bring the fucking truck back to the building.' Trudelle then asked if the plaintiff wanted anybody to come pick up the truck or if the plaintiff could drive it back to

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the center. The plaintiff said he would bring the truck back after his lunch break.

"When the plaintiff returned to the center, he found another driver waiting to take over his route. The plaintiff was upset and in physical pain and went to speak with Trudelle. He asked Trudelle what was going on because he thought he was supposed to have a helper assigned to his route. Trudelle told the plaintiff that his wife had called and said that the plaintiff was having a nervous breakdown. The plaintiff said that he was at his wit's end and needed to see a physician because of his pain. Trudelle told the plaintiff that he was acting irrationally and that he would be sent for a fitness for duty test and a substance abuse test. The plaintiff was upset by this and told Trudelle that he was going to the medical clinic to be seen by a physician for his back pain. 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.

"The plaintiff exited Trudelle's office and left the building yelling and swearing. As he exited, he telephoned his union steward but did not reach him. He then called his wife, who reviewed the collective bargaining agreement and told the plaintiff that refusing a fitness for duty test could be a ground for discharge. Trudelle followed the plaintiff to the parking lot. As the plaintiff reached the lot, supervisor Ray Congdon was walking up the driveway to the lot. Trudelle was on the telephone with [Charles A.] Sheahan, [a division manager] describing the situation. Per Sheahan's instructions, Trudelle informed the plaintiff that they would call the state police if he got into his car. Trudelle also told the plaintiff that he needed to accompany him for a fitness for duty test and drug test immediately. When the plaintiff again refused, Trudelle told him he was fired, and it was again the plaintiff's understanding that his employment 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.' When the plaintiff again refused to accompany Trudelle to the clinic, Congdon suggested, as an attempt to defuse the situation, that the plaintiff go with Congdon to the clinic instead and the plaintiff acquiesced.

"The plaintiff was seen at the clinic by Geraldine S. Ruffa, a physician. After examining the plaintiff, she did not find it necessary to administer a urinalysis drug test. The physician released the plaintiff back to work, but at a modified duty status with a lifting restriction of no more than fifteen pounds and minimum bending, squatting and twisting. She prescribed two medications

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