Tomick v. United Parcel Serv., Inc., 32797.

• Citation: 135 Conn.App. 589,43 A.3d 722,26 A.D. Cases 878
• Decision Date: 22 May 2012
• Docket Number: No. 32797.,32797.
• Parties: Michael TOMICK v. UNITED PARCEL SERVICE, INC., et al.
• Court: Appellate Court of Connecticut

135 Conn.App. 589

43 A.3d 722

26 A.D. Cases 878

Michael TOMICK

v.UNITED PARCEL SERVICE, INC., et al.

No. 32797.

Appellate Court of Connecticut.

Argued Jan. 19, 2012.

Decided May 22, 2012.

Michael C. Harrington, with whom were Genea O. Bell and, on the brief, Eric B. Miller, Hartford, for the appellants-appellees (defendants).

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

Kathleen Eldergill and Marc P. Mercier, Manchester, filed a brief for the Connecticut Employment Lawyers Association as amicus curiae.

Charles Krich, principal attorney, and Jan Elizabeth Walters, law student intern, filed a brief for the commission on human rights and opportunities as amicus curiae.

GRUENDEL, ROBINSON and SULLIVAN, Js.

GRUENDEL, J.

The defendants, United Parcel Service, Inc., and Kevin Trudelle, ¹ appeal from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Michael Tomick. On appeal, the defendants claim that the court improperly (1) denied their motions to direct and to set aside the verdict with respect to the plaintiff's claims of negligent infliction of emotional distress and violations of General Statutes § 31–51x² and General Statutes § 46a–60,³ (2) denied Trudelle's motion to remit or set aside the verdict against him for negligent infliction of emotional distress, (3) denied the defendants' motion for remittitur as to the jury's awards on the claims of negligent infliction of emotional distress and a violation of § 31–51x, (4) awarded attorney's fees on the plaintiff's claim of negligent infliction of emotional distress, (5) awarded reinstatement and back pay, and (6) precluded evidence of the parties' workers' compensation settlement. In his cross appeal, the plaintiff claims that the court improperly declined to consider the lodestar method when calculating the plaintiff's award of attorney's fees. We reverse the court's award of attorney's fees on the plaintiff's claim of negligent infliction of emotional distress. Additionally, we remand the matter of the defendant's motion to direct the verdict as to the plaintiff's claim under § 46a–60.⁴ We affirm the judgment in all other respects.

The jury reasonably could have found the following facts. In 1984, the plaintiff was hired by the defendant to sort packages part time. Two years later, he was hired as a package car driver. As a driver, the plaintiff's 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. Under the parties' collective bargaining agreement, drivers bid by seniority for routes. In approximately 1999, the plaintiff bid for a route in Lebanon, where he lived. He was assigned to the defendant's Norwich center (center).

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 ⁵ to the center informing the defendant of his situation and completed his route. That evening, Trudelle 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, 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,⁶ 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 the morning of December 1, Hebert investigated the scene where the plaintiff had fallen. Hebert e-mailed photographs of the scene to Trudelle, and opined that the plaintiff's account of the accident was untrue and that the injury could be attributed to the plaintiff's carelessness. Trudelle responded to the e-mail, stating, “[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.”

It was the defendant's standard practice to hold a conference call daily to review any injuries sustained by employees the previous day. The purpose of these calls was to report the injury, the employee's injury history and the precautions to be taken to ensure that the employee is not hurt again. To prepare for the call, Trudelle obtained the plaintiff's injury history report, a document generated by the defendant's human resources department that reflects injuries an employee has suffered during his or her employment with the defendant. Trudelle made notes on this document before the conference call identifying the injuries that resulted in lost time. Charles A. Sheahan, division manager, and Victor Birch, district risk manager,⁷ also participated in the conference call.

On December 2, the plaintiff returned to work. When he arrived that morning, he was told by both the pre-loader 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, 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 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.⁸ 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 Sheahan, 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...