Bad News, Good News: Disability Discrimination Plaintiff Sometimes Need Not Show He Was Qualified, But May Never Recover Punitive Damages

shutterstock_146730020 In a decision to be officially released on May 19, 2015, the Connecticut Appellate Court has addressed two interesting issues in the state law of employment discrimination, one of which is of considerable importance (and comfort) to employers. First, the court identified a relatively unusual situation in which a plaintiff claiming that he was discriminated against on the basis of a disability need not show that he was qualified for the job in question (with or without a reasonable accommodation). Second, the court held that Conn. Gen. Stat. §46a-104, which describes the relief available in a suit for employment discrimination under Connecticut law, does not authorize an award of punitive damages to a prevailing plaintiff.

The case, Tomick v. United Parcel Service, Inc., 2015 WL 2190773 (Conn. Appellate Court May 19, 2015) returned to the Appellate Court following an earlier remand. The story is a bit complicated, but the essential facts as found by the court were as follows:

Mr. Tomick, a delivery driver for UPS, injured his back in January 2003, received a 13% permanent disability of the spine, and returned to work after 10 months with no restrictions. On November 30, 2004, he reinjured his back. He took an approved day off on December 1, and returned to work on December 2 without formal medical restrictions, but believing that arrangements had been made to assign him a helper for the day. No helper was assigned, however, and Mr. Tomick was in considerable pain. He returned to the depot, where he got into a shouting match with the business manager. Although the manager told him he was fired during this incident, Mr. Tomick nonetheless went to a clinic with another supervisor for a “fitness for duty” test. The physician there examined him and released him to work, with restrictions.

In accordance with the business manager’s instruction, Mr. Tomick reported for work on the morning of the following day, December 3. He was told to return in the afternoon for temporary light duty work, but when he returned he was fired for violating the company’s policy against workplace violence, in light of the “altercation” the preceding day.

The first appeal focused mainly on the question of whether the trial court should have applied a “pretext” analysis or a “mixed motive” analysis to the plaintiff’s discrimination claim. The Appellate Court also assumed, without deciding, that the plaintiff had to show as part of his prima facie case that he was a “qualified individual” at the time of the “adverse employment decision.” On remand, the trial court applied the “pretext” analysis, and held (in denying the defendant’s motion for directed verdict) that the jury could have found that the decision to fire Mr. Tomick was made on December 1 and communicated to him on December 2, when he was qualified for his position because he had not yet been placed under medical restrictions, and that the discharge decision was actually based not (as UPS claimed) on the incident with the business manager, but on his history of having a disability. In terms of the legal analsyis, UPS’ claimed nondiscriminatory justification for its decision was “pretextual.”

On the second appeal, UPS contended that the trial court had erred both in finding that the adverse action occurred on December 2 (presumably UPS argued that the action occurred on December 3), and in finding that the Mr. Tomick was qualified to perform the essential functions of his job on that date. The Appellate Court, after reviewing the McDonnell Douglas – Burdine framework for analyzing disparate treatment cases, emphasized that the prima facie case requirements under that framework are “meant to be flexible,” and not “rigid, mechanized, or ritualistic.” Thus, even if in most cases the plaintiff must show, as an element of his prima facie case, that he was qualified for the job in question, that showing is not a necessary element of a prima facie case in every circumstance. And in this particular case, the court found that “the question of whether the plaintiff was qualified to perform the essential duties of his position at the time of termination [was] not relevant for two reasons.”

First, the plaintiff was not a job applicant, but was already an employee, and the defendant did not contend that it had discharged him because he was not qualified or because it could not accommodate his disability. Rather, UPS contended throughout the litigation that it had fired Mr. Tomick because he violated the workplace violence policy. Second, UPS could not in any event have relied on any alleged inability of the plaintiff to perform the essential functions of his position, because UPS did not know, at the time of the termination, whether the plaintiff’s injury had rendered him unqualified. The question of whether Mr. Tomick was qualified for his position therefore was not relevant to the question of whether he was discriminated against, and was not a required element of his prima facie case.

Having disposed of an issue that probably does not arise very often, the Appellate Court moved on to one that comes up more frequently: whether the statute authorizing a civil action for employment discrimination, after a release is obtained from the CHRO, permits an award of punitive damages in addition to attorney’s fees. This is a question that has divided the Superior Courts, but has not previously been addressed by the Appellate or Supreme Courts.

Our Supreme Court has held in prior cases that explicit statutory authorization is required for awards of punitive damages and attorney fees on statutory claims. Mr. Tomick argued here that the statute’s language permitting “such legal and equitable relief which [the court] deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorney’s fees and court costs” is sufficient to authorize an award of punitive damages in addition to attorney’s fees. The Appellate Court held to the contrary. Observing that “the legislature knows how to provide for punitive damages when it deems it appropriate,” the Appellate Court affirmed the decision of the trial court setting aside the jury’s $500,000 punitive damages award to Mr. Tomick.

In this second aspect, the decision provides significant comfort to employers concerned about potential exposure to punitive damages in discrimination cases. It remains to be seen whether the issue will be taken up on appeal to the Connecticut Supreme Court, addressed in a future legislative session, or left to rest.