Laureen Bull v. UPS Inc , 620 F. App'x 103 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3424
____________
LAUREEN BULL,
Appellant
v.
UNITED PARCEL SERVICE, INC.
_____________
No. 14-3560
____________
LAUREEN BULL
v.
UNITED PARCEL SERVICE, INC.,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 07-cv-02291)
District Judge: Honorable Kevin McNulty
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 23, 2015
Before: CHAGARES, JORDAN, and BARRY, Circuit Judges.
(Filed: July 13, 2015)
____________
OPINION
____________
CHAGARES, Circuit Judge.
This is a New Jersey Law Against Discrimination (“LAD”) action arising from an
alleged wrongful termination or failure to provide a reasonable accommodation.
Appellant Laureen Bull, having suffered an adverse jury verdict, challenges the District
Court’s denial of her motion for a new trial. Appellee United Parcel Service, Inc.
(“UPS”) cross-appeals the District Court’s denial of its motion for a directed verdict. For
the reasons that follow, we will affirm the District Court’s denial of Bull’s motion for a
new trial and dismiss the cross-appeal as moot.
I.
Bull is a 58-year-old woman who worked for UPS in an Edison, New Jersey
warehouse from 1986 until 2006. In December 2005, a packaged snow-blower fell on
Bull while she was working and caused significant bruising and strain to her right
shoulder and neck. Appendix (“App.”) 30. Dr. Katalin Hovath initially diagnosed Bull’s
injuries and imposed a 25-pound lifting restriction. Id. In a follow-up visit a week later,
Dr. Hovath maintained the 25-pound lifting restriction and referred Bull to a specialist.
App. 38. The specialist, Dr. Teresa Vega, prescribed a 20-pound lifting restriction. App.
49-50.

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
During the initial phase of her recovery, Bull performed “light duty” clerical work
for UPS. App. 1309. She exhausted her entitlement to light duty work in February 2005
and went on workers’ compensation leave. App. 1312.
On March 29, 2006, Dr. Vega determined that Bull had reached maximum
medical improvement and removed all prior restrictions except a 10-pound overhead
lifting restriction. App. 68, 1249. Bull returned to work at the Small Sorts Department at
UPS that day. App. 1314.1 She initially worked as a “bagger,” placing small packages in
a mesh bag and transferring them to a conveyor. Id. These bagging duties did not entail
overhead lifting. App. 1315, 1880. Bull also worked at a “Sorts” table, placing small
packages on chutes. App. 1315-16. This also required no overhead lifting. App. 1316.2
Bull performed her work without incident. Id.
On April 3, 2006, Janet Liposky3 asked Bull to help her at a de-bagging station.
App. 1847-48. Bull explained that she could not lift anything heavy. App. 1848. At that
point, Liposky reached out to Human Relations while Bull finished her shift.
The next day, Liposky approached Bull and told her that she could not assign
work to her because she was on permanent disability. App. 1849.4 UPS’s Occupational
1
The jury heard conflicting evidence about whether Bull submitted Dr. Vega’s
instructions to her manager, Janet Liposky, at that time. See App. 1314, 1845.
2
However, multiple witnesses at trial testified that Small Sorts work does require lifting
up to 70 lbs. App. 1555, 1767-79, 1844.
3
The parties’ briefs and the record spell Liposky’s name inconsistently as “Liposky” or
“Lipofsky.”
3
Health Manager, Kathleen Deady, testified at trial that an employee returning from
workers’ compensation leave normally must provide a medical note to her supervisor
attesting that she can perform the essential job functions. App. 1686-87. Absent such a
note, Bull should not have been allowed to return to work in the first place. Id. Deady
further testified that if a medical disability prevented an employee from performing the
essential functions of a job, Deady’s job was to work with the employee to determine if a
reasonable accommodation could be made. App. 1626-28. Deady did not participate in
any such process with respect to Bull. App. 1628-29. She opined that she would have
initiated the process if she had seen Dr. Vega’s March 29 note. App. 1688.5
Bull contacted her union representative, who told her that UPS needed medical
documentation that she was fit. App. 1322-23. There is some evidence of a
miscommunication here. Bull’s union representative apparently believed – and
communicated to UPS – that Bull sought only to return to full duty in Small Sorts. App.
1551, 1767. UPS therefore requested medical notes clearing her for the essential
requirements of that position.
4
Bull claims that Liposky fired her during this confrontation, App. 1318, but all other
trial witnesses, including Bull’s union representative, agree that UPS did not formally
terminate her at that time. See, e.g., App. 1617, 1752-54. Bull no longer drew a regular
salary, App. 1320-21, but she did receive checks for previously-accrued vacation and
holiday pay. App. 1720-21. These checks stopped after May 10, 2007. App. 1730.
5
Labor Relations Manager Sal Messina cast some doubt on this testimony by asserting
that Deady herself apprised him of the contents of Dr. Vega’s March 29 note in early
April 2006. App. 1539-40, 1548.
4
In June 2006, Bull saw Dr. Morton Farber and obtained a note assuring UPS that
she could lift “50 pounds or more.” App. 75. Labor Relations Manager Sal Messina
determined this note was not sufficient to return Bull to work. His understanding was
that employees in Small Sorts need to be able to lift 70 pounds. App. 1553-55. He did
not consult Human Resources or ask Deady to evaluate the possibility of accommodation.
App. 1571.
Bull’s union representative then told her that UPS required a note saying she could
lift 70 pounds. App. 1326. In August 2006, Bull returned to Dr. Farber’s office and,
without actually seeing Dr. Farber, App. 1484, obtained a note stating that “[the] patient
is not able to lift over 70lbs.” App. 77. UPS doubted the validity of the new note. App.
1576, 1579, 1589. It contacted Dr. Farber’s office for clarification. In September 2006,
Dr. Farber faxed UPS a note stating Bull could not lift more than 50lbs. App. 424. UPS
advised Bull’s union representative that it could not allow her to return to work on the
basis of this note. App. 846. Bull’s union representative tried to follow up with Bull in
September and October, App. 433-34, but Bull did not respond.6
In April 2007, Bull filed this suit alleging, among other things, wrongful
termination based on her disability. App. 134-51. After a second trial,7 the case went to
the jury. Bull’s counsel objected to the formulation of the verdict sheet on the grounds
that Interrogatory #3, “Ms. Bull was terminated by United Parcel Service, Inc. (UPS);
6
Bull allegedly contacted the union in September 2006 about filing a grievance on her
behalf but received no response.
7
The first trial ended in a mistrial.
5
[Yes/No],” and Interrogatory #4, “In terminating Ms. Bull, UPS discriminated on the
basis of her disability; [Yes/No],” App. 103, should have been consolidated into a single
question — “UPS’s failure to provide a reasonable accommodation resulted in a
termination of Miss Bull; [Yes/No]” — and moved to the end of the verdict sheet. App.
103, 1919-20. Bull’s argument was that if the jury found in response to Interrogatory #8
that UPS had failed to reasonably accommodate Bull, then as a matter of logic it would
have to find that UPS had terminated her. The District Court’s formulation of the verdict
sheet allowed the jury to find that UPS wrongfully failed to accommodate Bull but did
not terminate her employment. And in fact, that was the verdict the jury ultimately
delivered.
Bull moved for a new trial on the bases that the verdict sheet was defective and the
jury had delivered an internally inconsistent verdict. UPS renewed an earlier motion for
judgment as a matter of law based on the argument that the Labor Relations Management
Act preempted Bull’s claims. The District Court denied both parties’ motions. Both
parties timely appealed.
II.8
8
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review the denial of a motion for a new trial for abuse
of discretion. Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007). In determining whether
the jury instructions stated the proper legal standard, our review is plenary, but we review
the refusal to give a particular instruction or the wording of instructions for abuse of
discretion. United States v. Jimenez, 513 F.3d 62, 74 (3d Cir. 2008).
6
“[A] mistake in a jury instruction constitutes reversible error only if it fails to
‘fairly and adequately’ present the issues in the case without confusing or misleading the
jury.” Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 79 (3d Cir. 2009) (quoting
United States v. Ellis, 156 F.3d 493, 498 n.7 (3d Cir. 1998)). The structuring of special
verdict interrogatories is particularly within the trial court’s discretion, and “[t]he only
limitation [on this discretion] is that the questions asked of the jury be adequate to
determine the factual issues essential to the judgment.” McNally v. Nationwide Ins. Co.,
815 F.2d 254, 266 (3d Cir. 1987) (second alteration in original).
“When the [jury] answers are inconsistent with each other and one or more is also
inconsistent with the general verdict, judgment must not be entered; instead, the court
must direct the jury to further consider its answers and verdict, or must order a new trial.”
Fed. R. Civ. P. 49(b)(4). However, a court may order a new trial based on inconsistent
verdicts only if “no rational jury could have brought back the verdicts that were
returned.” Pearson v. Welborn, 471 F.3d 732, 739 (7th Cir. 2006) (quotation marks
omitted). It is our duty “to attempt to harmonize the [jury’s] answers, if it is possible
under a fair reading of them: ‘[w]here there is a view of the case that makes the jury’s
answers to special interrogatories consistent, they must be resolved that way.’” Gallick v.
Baltimore & O.R.R. Co., 372 U.S. 108, 119 (1963) (quoting Atl. & Gulf Stevedores, Inc.
v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962)).
Bull argues that the order of interrogatories in the District Court’s jury verdict
sheet failed to advise the jury that UPS’s failure to accommodate Bull’s disability could
7
result in her “de facto” termination. In effect, Bull contends, the verdict sheet gave the
jury a mistaken impression that Bull had to prove termination as an independent element
in her “failure to accommodate” claim.
“N.J.A.C. 13:13–2.5(b) requires an employer to make a ‘reasonable
accommodation to the limitations of an employee . . . who is a person with a disability.’”
Potente v. Cnty. of Hudson, 900 A.2d 787, 791 (N.J. 2006). Generally, a prima facie
case of failure to accommodate under the LAD9 requires proof that “(1) the plaintiff had a
LAD handicap; (2) was qualified to perform the essential functions of the job, with or
without accommodation; and (3) suffered an adverse employment action because of the
handicap.” Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 150 (3d Cir.
2004) (citation omitted). In Victor v. State, the New Jersey Supreme Court considered
but did not decide whether a failure to accommodate claim could exist without an adverse
employment action. 4 A.3d 126, 149 (N.J. 2010). It noted, however, that the
circumstances in which a failure to accommodate did not result in an adverse
employment consequence would be rare. Id. at 148-49.
9
Bull pled her claim as one for wrongful termination, not failure to accommodate. See
App. 145. However, even when a plaintiff does not plead a failure to accommodate as a
separate cause of action, we will analyze her LAD claim under that framework when “an
employer, rather than defending [its actions] on the grounds that the employee was
terminated for legitimate, non-discriminatory reasons, proffers the employee’s inability to
perform the job as a defense.” Viscik v. Fowler Equip. Co., 800 A.2d 826, 837 (N.J.
2002). Because UPS raised such a defense, the District Court treated Bull’s claim as one
for failure to accommodate. App. 12.
8
The jury’s finding that UPS failed to accommodate Bull but did not terminate her
or discriminate against her on the basis of her disability pulls at that dangling thread in
New Jersey law. Bull argues that the jury should not have been asked to find termination
as a separate element because UPS’s failure to accommodate Bull was a de facto
termination. She cites Seiden v. Marina Associates’s holding that “[i]f . . . the employer
denies an employee an opportunity to continue with employment because the employee
suffers from a disability that could reasonably be accommodated . . . that in itself is an
unlawful employment practice and a violation of the LAD.” 718 A.2d 1230, 1234 (N.J.
Super. Ct. Law Div. 1998).
We find the Seiden decision inapposite. The Seiden plaintiff was indisputably
fired. The court did not discuss the definition of an adverse employment action but
explained that a plaintiff alleging a failure to accommodate does not have to prove
anything about the treatment of nondisabled employees. See id. Applying Seiden to the
facts here, where Bull has not established an adverse employment action, would collapse
the traditional elements of the prima facie case. Although the New Jersey Supreme Court
may later decide to strike “adverse employment action” as a distinct element in a failure
to accommodate claim, it has not yet done so. See Victor, 4 A.3d at 149. Under current
law, it is possible to read the jury’s verdict as finding the rare circumstance in which an
9
employer failed to accommodate an employee but the employee suffered no adverse
consequence. We are bound to adopt that reading.10
During summations, Bull’s counsel argued its theory that UPS’s failure to
accommodate resulted in a de facto termination. App. 1986. The jury returned a negative
verdict.11 We agree with the District Court that the jury might have believed that UPS
did not initially accommodate Bull upon her request to return to work, but neither did it
fire her, and communications simply broke down without clear fault. Whether this is the
only or even the best reading of the jury’s verdict is beside the point: “[w]here there is a
view of the case that makes the jury’s answers to special interrogatories consistent, they
must be resolved that way.” Atl. & Gulf Stevedores, Inc., 369 U.S. at 364.
III.
UPS argues on cross-appeal that federal labor law preempts Bull’s discrimination
claims because her prima facie case requires interpretation of the collective-bargaining
agreement between UPS and Bull’s union. Because we will affirm the District Court’s
10
Bull might have established adverse employment consequences short of outright
termination, but she chose to pursue a termination theory. She initially pled her claim as
one for wrongful termination, see App. 145 (“Defendant’s unlawful termination of Ms.
Bull constitutes handicap discrimination within the meaning of the New Jersey Law
Against Discrimination.”), and she conceded at various points that she would have to
prove termination. See Supp. App. 10, App. 835. In her own proposed jury instructions,
Bull stated that “[i]n order to make her claim of disability discrimination, [she] must
prove by a preponderance of the evidence that . . . she . . . was fired . . . .” Supp. App.
152. The District Court’s final jury instructions included this requirement: “[I]t is the
plaintiff’s burden to show . . . that the plaintiff was fired . . . .” App. 2012.
11
Counsel did not request that the jury be instructed on the point, but the District Court’s
jury charges did not rule out such a theory.
10
order denying Bull’s motion for a new trial, we will not reach the merits of UPS’s cross-
appeal. The cross-appeal will therefore be dismissed as moot.
IV.
For the foregoing reasons, we will affirm the order of the District Court denying
Bull’s motion for a new trial (14-3424), and we will dismiss as moot UPS’s cross-appeal
from the denial of its motion for a directed verdict (14-3560).
11