BULL v. UNITED PARCEL SERVICE, INC.

Filing 119

OPINION fld. Signed by Judge Kevin McNulty on 7/1/14. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

LAUREEN BULL,

Civ. No. 07-2291 (KM)(MCA)
Plaintiff,
OPINION
ON POST-TRIAL MOTIONS

UNITED PARCEL SERVICE, INC.,
Defendant.

MCNULTY, U.S.D.J.,
In this employment discrimination brought pursuant to the New Jersey
Law Against Discrimination (“LAD”), N.J.S.A. § 10:5-1 to 10:5-49, a jury
reached a verdict in Defendant’s favor following a five-day trial. Thereafter, both
parties filed motions for post-trial relief. I will deny the pending motions and
enter Judgment in accordance with the jury’s verdict.
PROCEDURAL HISTORY
In April 2007, Ms. Bull filed this suit asserting various discrimination
claims under the LAD, as well as retaliation claims, in the Superior Court of
New Jersey. UPS removed the case to this Court in May 2007. Then-District
Judge Dennis M. Cavanaugh’ convened a jury trial in March 2010. On the
third day of trial, Ms. Bull, on the witness stand, revealed that she possessed
at home the original of a key document (a doctor’s note dated June 13, 2006),
which was requested by UPS in discovery but never produced. As a sanction,
Judge Cavanaugh declared a mistrial and dismissed Ms. Bull’s claims. The
United States Court of Appeals for the Third Circuit held that the sanction of
dismissal was not justified, and remanded the matter. [ECF No. 72]. The case
was reassigned to me. On remand, no party pressed the issue of sanctions.
I convened a second jury trial in November 2013. The parties presented
evidence for five days, after which I charged the jury to render a verdict as to
the two remaining counts:
-

1

Count One: Disability Discrimination (LAD)

Judge Cavanaugh retired on January 31, 2014.

-

Count Two: Retaliation for Filing a Worker’s Compensation
Claim.

The jury was instructed on the pertinent law concerning those two
counts. The parties did not express any objection to the contents of the jury
charge as delivered following the charge conference, and they do not challenge
the jury instructions in this motion.
Plaintiff did, however, voice an objection to the wording of certain
interrogatories on the jury verdict sheet, as well as the order in which certain
interrogatories were asked. The interrogatories were posed to and answered by
the jury as follows:
Count 1 (Disability Discrimination)
We, the jury, fmd that Plaintiff Laureen Bull has proven, by
a preponderance of the evidence that:
Ms. Bull suffered from a disability as a result of her
1.
injury. (Nofindirig necessary, as parties agreed)
2.
Ms. Bull was actually performing her job prior to
April 4, 2006; _x_YESNO (Jury answered YES).
3.
Ms. Bull was terminated by United Parcel Service,
Inc. (UPS); _YES_x_NO (Jury answered NO).
In terminating Ms. Bull, UPS discriminated on the
4.
_YES_xNO (Jury answered
basis of her disability.
NO).
Ms. Bull was able to perform the essential functions
5.
of her job, either with or without a reasonable
accommodation; _x_YESNO (Jury answered YES).
6.
UPS was aware that Ms. Bull needed a reasonable
accommodation to perform the essential functions of her
job; _x_YESNO (Jury answered YES).
7.
At the time Ms. Bull was fired, a reasonable
accommodation existed that would have allowed her to
perform the essential functions of her job; xYESNO
(Jury answered YES).
8.
UPS wrongfully did not make such a reasonable
accommodation; _x_YES.NO (Jury answered YES).
If YES to ALL of the above (1 through 8), continue to
number 9.

2

If NO to ANY of the above, you have FOUND IN FAVOR
OF UPS on Count 1, and must skip to Count 2.

We, the jury, find that UPS has established, with a
reasonable degree of certainty, that:
Prior to terminating Ms. Bull, UPS arrived at the
9.
conclusion, based on factual or scientific evidence, that
employing Ms. Bull even with a reasonable accommodation
would have materially increased the risk of serious harm to
Ms.
Bull
and/or
her
fellow
employees.
__YES __NO (Jury did riot reach this question).
If YES to number 9, you have FOUND IN FAVOR OF UPS
on Count 1, and should continue to Count 2.
If NO to number 9, you have FOUND IN FAVOR OF MS.
BULL on Count 1, and should continue to Count 2.

Count 2 (Retaliation for Filing Worker’s Compensation
Claim)

We, the jury, find that Plaintiff Laureen Bull has proven, by
a preponderance of the evidence, that:
1.
UPS terminated her employment on April 4, 2006
because she made a workers’ compensation claim and/or
sought workers’ compensation benefits. _YES_x_NO
(Jury answered NO).
If YES, then you have FOUND IN FAVOR OF MS. BULL
on Count 2.
If NO, then you have FOUND IN FAVOR OF UPS on
Count 2.

Plaintiff’s objections at trial, like her current motions, pertain only to
Count 1. The jury found against Plaintiff on Count 1 by virtue of its finding
that UPS did not, as alleged, terminate Ms. Bull’s employment and discriminate
on the basis of disability. (See Verdict sheet Interrogatories 3 and 4). Ms. Bull
is clearly disappointed that the jury found that she was not terminated,
contrary to her contention since the outset of this action. (See Complaint at ¶
92). She now contends, however, that the jury should never have been asked to
make a separate finding as to whether she was terminated. Alternatively, she
argues that the manner in which that question was posed misled the jury or
misrepresented the legal import of such termination.

3

Accordingly, Ms. Bull seeks a new trial on the basis that the verdict sheet
misled the jury as to the law, citing Rule 59. (See Part I, infra). She also
complains that the jury’s answers to the interrogatories as posed were
mutually inconsistent. Thus she also seeks a new trial pursuant to Rule 49.
(See Part II, infra). She appears to embed a motion for judgment as a matter of
law within her Rule 49 motion; that motion, which she does not elaborate on, I
will deny summarily.
UPS renews the motion that it made for judgment as a matter of law,
pursuant to Rule 50, that it made at the close of Ms. Bull’s case. UPS contends
that Ms. Bull’s claims are preempted by the Labor Relations Management Act,
because they pertain to a valid collective bargaining agreement governing her
rights as an employee. (See Part III, infra).
FACTUAL BACKGROUND
Ms. Bull went to work for UPS in 1986 as a warehouse employee in its
Edison, New Jersey facility. (Trial Testimony of Bull, 11/19/13 Tr. at 5:3-4,
6:15-17). The job is a physical one, and from time to time she was injured. (Id.
at 8:24-9:16). On eight or nine occasions she took disability leave, the longest
of which was six months. (Exs. D94-D97, D101, D104-D1 10). Each time, she
returned to work when she was medically cleared to do so. (See generally Bull
Testimony, 11/20/13 Tr. at 51:11-24 (regarding Ms. Bull’s prior knowledge of
the doctor note requirement)).
There is no dispute that Ms. Bull had an on-the-job accident on
December 19, 2005. With the help of a co-worker, she was lifting overhead a
package containing a snowplow. The co-worker lost her grip and the package
fell on Ms. Bull, injuring her. (Bull Testimony, 11/19/13 Tr. at 10:8-16).
Soon thereafter, Ms. Bull returned to work. UPS placed her on “light
duty” for a time. (Id. at 23:21-27:7-9). In January 2006, Ms. Bull obtained
notes from Dr. Katalin Horvath and Dr. Teresa Vega stating that her lifting was
restricted to 20 or 25 pounds. (11/19/13 Tr. at 20:24-27:3). After over a month
of light duty work, however, she was advised to go on workers’ compensation
leave, which she did. (Id. at 27:9-15). On March 1, 2006, she saw Dr. Vega
again; Vega reconfirmed the lifting restriction of 20 to 25 pounds. (Id. at 27:21
25). On March 15, 2006, Dr. Vega reimposed the same lifting restriction. (Id. at
28:1-8). Finally, on March 29, 2006, Ms. Bull got a note from Dr. Vega stating
that she had reached maximum recovery and should not lift more than 10
pounds “overhead.” (Id. at 28:12-20). The same day, Ms. Bull gave that doctor’s
note to her supervisor, Janet Liposky. Liposky immediately assigned Ms. Bull
to the “Smalls” or “Small Sorts” department. (Id. at 28:21-29:14). There, Bull
handled bags of packages weighing no more than ten pounds. She did not have
to lift anything overhead, but rather only six inches off the floor. (Id. at 29:15-

4

30:12). It is fair to conclude that the jury substantially accepted the facts
stated in this paragraph.
Ms. Bull testified that five days later, on April 4, 2006, upon arriving for
work, she “was directed to leave the building and told that I could no longer
work for UPS any more. I had to punch out and leave because of supposedly
comments I made to the doctor.” (Id. at 32:20-33:6). Supervisory personnel
allegedly told her she could not work at UPS any more. (Id.; 11/20/13 Tr. at
17:3-25). The jury evidently did not necessarily accept Bull’s testimony and
evidence on this point, because it found that UPS never terminated her.
2
The post-April 4, 2006 period was one of informational stalemate.
Confusion reigned about matters as fundamental as whether Ms. Bull was
trying to establish that she was disabled, or was not disabled. On June 13,
2006, she went to Dr. Farber, who gave her a note. This note was partially cut
off in the faxing process, self-contradictory in some respects, and difficult to
read in places. As to the disability, however, the thrust of the note was that
Bull was capable of lifting “50 lbs. or more.” (Ex. P27; Bull Testimony,
11/19/ 13 Transcript at 39: 19-40:4).
Bull faxed that June 13 note to her union representative. (Bull
Testimony, 11/19/13 Transcript at 40:5-17) Her evident intent was to
demonstrate that she met job requirements (id. at 40:8-42-3).3 Thereafter,
however, her union representative Bob Cherney told her that the requirement
UPS introduced corroborating evidence that there was no termination. Bull
did not receive any notice of termination. In June 2006 she received a 20-year service
award. She continued to receive checks for back pay, vacation pay and holiday pay as
it accrued. (Exs. D66-D84). She received notices inviting her to re-enroll in the health
plan. (Ex. D131).
2

At the first trial of this matter, Ms. Bull sought to introduce a copy of this
note, and UPS objected on the basis of “best evidence.” Then, in open court, Ms. Bull
stated that she possessed the original of this note, which had not been produced in
discovery. That gave rise to the above-described mistrial and dismissal, which the U.S.
Court of Appeals for the Third Circuit reversed. See 665 F.3d 68, 70-72 (3d Cir. 2012).
Ms. Bull, apparently on her own, mailed to Judge Cavanaugh what she purported to
be the originals of both the June 13, 2006 note and a subsequent August 14, 2006
note from Dr. Farber. Id. at 72. The parties agreed that the August 2006 note was an
original, but disputed whether Ms. Bull had actually furnished the original of the June
2006 note. (See 4/2/13 Bissinger Ltr. [ECF No. 831). Ultimately, before the second trial
commenced, the parties agreed that Ms. Bull would only rely on the faxed copies of the
two notes, and that UPS would drop its objections concerning the notes. (See 6/26/13
Bissinger Ltr. [ECF No. 871). Ironically, at the second trial, Ms. Bull produced from her
briefcase what she said was a termination letter, dating from long after the events in
suit; by mutual agreement of the parties, this letter, which apparently was not
produced in discovery by either side, was not introduced in evidence. (See Bull
Testimony, 11/19/l3Tr. at 98:13-24).
3

5

of the job was the ability to lift 70, not 50, pounds. (Cherney Testimony,
11/22/13 Tr. at 30:4-31:2). As to that point, the doctor’s statement that she
could lift 50 pounds “or more” was ambiguous. (See Ex. P27). The union
representative stated that if Bull obtained a doctor’s note that she met job
requirements, the union would pursue a grievance on her behalf. (Bull
Testimony, 11/19/ 13 Tr. at 42:19-43:5).
Bull expressed displeasure, because she believed that the standard was
50 pounds, not 70. (Id. at 41:18-43:5). She testified that 50 pounds had been
the standard when she was hired (Id. at 42:14). It had, however, been raised to
70 pounds thereafter. (Cherney Testimony, 11/22/13 Tr. at 30:12-21). She was
also displeased that Cherney had not told her about the 70-pound requirement
initially, before she first went to Dr. Farber. (Bull Testimony, 11 / 21 / 13 Tr. at
63:10-64:2). It appears, at least based on Cherney’s recounting, that Bull
believed she enjoyed a vested right to have the 50-pound standard continue to
apply to her. (Cherney Testimony, 11/22/13 Tr. at 30:12-2 1).
Two months passed (the delay is largely unexplained). Eventually, Bull
supplied her union representative with a second, revised note from Dr. Farber,
dated August 14, 2006. This note was very similar to its predecessor, except
that it now stated that the “Patient is not able to lift over 70 lbs.” (Ex. P30; Bull
Testimony, 11 / 19/13 Tr. at 45:17-20).] Ms. Bull faxed that August 14 note to
her union representative. (Bull Testimony, 11/19/13 Tr. at 45:21-46:5).
Further confusion ensued. (See Messina Testimony, 11/20/13 Tr. at 186:22187:21). As with the first note from Dr. Farber, the bottom of this note was cut
off in the faxing process. (Ex. P30). The date when Bull could medically return
to work was given as June 14, 2006, two months before the date of the note.
(Ex. P30). As to the disability, the note was ambiguously phrased in the
negative (“not able to lift over 70 lbs”), when the evident purpose of the note
was to establish that Ms. Bull was able to lift up to 70 pounds. (Id.).
A three-way round robin of communications among the union, UPS, and
the doctor’s office ensued. Ms. Bull was in touch with her union representative,
trying to get them to advocate her return to work. (Cherney Testimony,
11/22/13 Tr. at 72:6-20). Sal Messina, the company’s labor relations
specialist, was also in touch with the union. (Messina Testimony, 11/20/13 Tr.
at 15 1:16-152:24). Kathleen Deady, UPS’s occupational nurse, got in touch
with Dr. Farber’s office in an attempt to obtain a clear statement as to Bull’s
medical condition. (Deady Testimony, 11/21/13 Tr. at 9:8-22; see also Ex. D7).
In September, an employee at Dr. Farber’s office informed UPS that the Ms.
Bull had obtained the August 14 note from them, “but was not seen.., she was
only in [Dr. Farber’s] office one time.” (Ex. P28 (copy of 9/18/06 email from
Denise Daniels to Kathleen Deady)) The sense of this communication was that
Bull had seen the doctor in June, but not in August, when she obtained the
second note. The signature on the note remained mysterious, as it was not
6

written by the doctor. The most benign interpretation of the evidence, which I
am inclined to accept, is that someone in Farber’s office signed it as an
accommodation to Bull.
Deady had sent Dr. Farber a worksheet in an attempt to obtain a clear
statement. On September 20, 2006, Dr. Farber’s office faxed UPS the filled-out
worksheet, which did not really clarify things. (Ex. D10). This sheet reinstated
the original note’s limitation of 50 (not 70) pounds, but did not explain why.
(Id.)
On September 27, 2006, UPS sent a letter to Bull’s union representative,
which stated in part:
As you know, we received two notes from Dr. Farber’s office
regarding Ms. Bull’s ability to return to work; both notes (dated
June 13, 2006 and August 14, 2006) indicate restricted duty.
The Company also requests that Ms. Bull produce the original
notes from Dr. Farber’s office due to the fact that the notes
received to date are blurry and in some cases illegible.
(Ex. D13). UPS was concerned that the copies of the notes it received, faxed by
Ms. Bull, did not accurately reflect the originals. The notes did have problems
in the sense that they were internally inconsistent, confusing or illegible; at
trial, however, the evidence did not establish any purposeful tampering, and
the jury was not asked to make any specific finding as to that issue.
In September and October 2006, Cherney sent letters to Ms. Bull asking
for further clarification. (Exs. D12, D14). Bull did not reply to Cherney’s
requests (see Bull tr. 11/20/13 tr. 83:23-85:13; Exs. D14, D15), and the union
closed the case. (Ex. D15 (Cherney Letter of 11/3/06)). According to UPS, it
never received the expected medical clarification, so it did not further pursue
calling her back or designing an accommodation.
EEOC claim and outcome
Meanwhile, on May 12, 2006, Bull had filed a workers compensation
claim. One doctor examined her in November 2006 and found she was 45%
permanently disabled, with injuries to the neck and shoulder. (Ex. Dl 15).
Another found she was 66 2/3% disabled. (Exs. D132, D133). The company
doctor found her 7’/2% disabled. (Ex. D45). These results were not submitted to
the union or UPS; the workers compensation case proceeded on a parallel and
independent course. In 2010, Bull testified in the comp case that she was
unable to put on a blouse, pull weeds, or perform other simple tasks. (Bull
Testimony, 11/20/13 Tr. at 35:20-36:13). On June 8, 2012 the workers comp
claim was settled for a lump sum payment of $22,956. (Exs. P39, P40; see also
Bull Testimony, 11/19/13 Tr. at 65:6-66:23).
7

DISCUSSION
I.

Whether a New Trial is Warranted Because the Jury Verdict
Sheet Improperly Asked, Or Asked In An Improper Format,
Whether Plaintiff was Terminated

Ms. Bull’s first argument is that she is entitled to a new trial based on
inadequacies in the jury verdict sheet. (See Pltf.’s Br. in Supp. Motions at Point
I, p. 15). She does not contend that there was any error in the court’s
instructions to the jury regarding the applicable law.
A. The Applicable Standards
Rule 59 provides that “[tlhe court may, on motion, grant a new trial on
all or some of the issues—and to any party— (A) after a jury trial, for any
reason for which a new trial has heretofore been granted in an action at law in
federal court; or (B) after a nonjury trial, for any reason...” Fed. R. Civ. P.
59(a)(1). “Any error of law, if prejudicial, is a good ground for a new trial.” 11
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure Civil § 2805 (3d Ed. 2012). For an error of law to warrant a new trial,
it must affect a party’s substantial rights. Fed. R. Civ. P. 61. An error in the
jury charge, or in the jury verdict sheet and its component interrogatories, may
furnish grounds for a new trial. See DeWitt v. New York State Hous. Fin.
Agency, 1999 U.S. Dist. LEXIS 13057 at *913 (S.D.N.Y. Aug. 24, 1999). As a
general matter, “[tihe decision whether to grant a new trial pursuant to Federal
Rule of Civil Procedure 59(a) lies within the district court’s sound discretion.”
Inter Med. Supplies v. EBI Med. Sys., 975 F. Supp. 681, 686 (D.N.J. 1997)
(citing Allied Chemical Corp. v. Daflon, Inc., 449 U.S. 33, 36 (1980)).
Jury interrogatories are authorized by Federal Rule of Civil Procedure 49.
“The formulation of jury interrogatories is entrusted to the discretion of the
trial judge.” Armstrong v. Dwyer, 155 F.3d 211, 216 (3d Cir. 1998). “The only
limitation [on this discretionj is that the questions asked of the jury be
adequate to determine the factual issues essential to the judgment.’” Id.
(quoting McNally v. Nationwide Ins. Co., 815 F.2d 254, 266 (3d Cir. 1987)); see
also Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 245-46 (3d Cir.
2006)). In assessing such adequacy, the court may consider the instructions it
issued to the jury. See Kant v. Seton Hall Univ., 279 Fed. App’x. 152, 160 (3d
Cir. 2008). The essential question is whether the jury lacked adequate
guidance from, or was misguided by, the instructions and verdict sheet it
received from the court, such that it can be said that the movant’s substantial
rights were affected. United States v. 564.54 Acres of Land, 576 F.2d 983, 9878

988 (3d Cir. 1978), rev’d on other grounds, 441 U.S. 506 (1979); Inter Med.
Supplies, 975 F. Supp. at 698 (denying motion for new trial because error in
the verdict sheet did not lead “jury to mistake the burden of proof’ and “jury
was properly instructed on the relevant law.”).
Thus the issue is whether any error in the verdict sheet here affected Ms.
Bull’s substantial rights by inadequately or incorrectly guiding the jury’s
findings as to essential issues.
B. State Law Governing A Failure-to-Accommodate Claim and
the Jury Charges, to Which Plaintiff does not Object

At trial, I agreed with Ms. Bull that her cause of action for discrimination
under the New Jersey LAD arises under the legal framework for a claim of
failure to accommodate, a subcategory of employment discrimination.
That requires some explanation. Plaintiff did not affirmatively plead
“failure to accommodate” in her complaint. UPS, however, countered Ms. Bull’s
“handicap discrimination” claim by proffering that she was physically unable to
perform her job. Under New Jersey Supreme Court precedent, that defense
raises the issue of whether UPS offered a reasonable accommodation to Ms.
Bull before taking adverse employment action. See Viscik v. Fowler Equipment
Co., 173 N.J. 1, 19-20 (2002).
The basic elements of handicap discrimination by way of a wrongful
failure to accommodate are that plaintiff (1) has a disability, (2) is otherwise
qualified to perform the essential functions of the job, with or without a
reasonable accommodation, and (3) “nonetheless suffered an adverse
employment action because of the disability.” Seiden v. Marina Assoc., 315 N.J.
Super. 451, 465-66 (Law Div. 1998). That statement of the essential elements
of a LAD failure-to-accommodate claim closely mirrors that of the Third Circuit
in a case brought under analogous federal law. See Shiring v. Runyon, 90 F.3d
827, 831 (3d Cir. 1996) (holding that an actionable failure to accommodate is
established by a showing that plaintiff (1) was disabled, (2) was able to perform
the essential functions of the job, either with or without an accommodation,
but (3) was “nonetheless terminated or otherwise prevented from performing
the job,” subject to defendants’ establishment, as an affirmative defense, that a
reasonable accommodation would constitute an undue hardship).
In Seiden, for example, the plaintiff suffered from chronic leg pain. When
asked to work a later shift, he informed his employer that his pain increased
late in the day. He asked for an accommodation, but was moved to the later
shift anyway. As a result he regularly called in sick and was eventually fired for
excessive absenteeism. Id. at 456-458. The court, addressing this fact pattern,
viewed it as a claim of “discrimination due to a failure to accommodate a
handicap.” Id. at 455.
9

Seiden drew an important distinction between failure-to-accommodate
cases, like this one, and disparate treatment cases. A failure-to-accommodate
4
case is not subject to the McDonnell Douglas analysis of disparate treatment.
To the contrary, where “the employer denies an employee an opportunity to
continue employment because the employee suffers from a disability that could
reasonably be accommodated, but is not, regardless of how other employees
are treated, that in itself is an unlawful employment practice and a violation of
LAD.” Id. (citing N.J.S.A. § 10:5-29.1). The Seiden court analyzed the plaintiff’s
“claim[] [that] as a result of the refusal to accommodate him, he was fired,” and
held that “[t]hese facts, if proven, amount to an unlawful employment
practice... the harm to be remedied is the adverse employment action which
resulted from the failure to accommodate.” Id. at 465.
Finally, as the parties agreed, when a disability is claimed, and before
any adverse employment action is taken, an employer and an employee have a
duty to engage in an interactive discussion in an attempt to find an appropriate
reasonable accommodation. Failure to confer is not necessarily dispositive of
the case, but the jury may take such evidence into account. See Tynan v.
Vicinage 13 of Superior Court, 351 N.J. Super. 385, 400-40 1 (App. Div. 2002);
Mengine v. Runyon, 114 F.3d 415, 420-42 1 (3d Cir. 1997); Taylor v. Phoenixville
Sch. Dist., 184 F.3d 296, 317-318 (3d Cir. 1999).
I instructed the jury in accordance with the principles cited above. (See
generally Court’s Instructions to Jury, 11/26/13 Tr. at 2:9-29:17). There is no
contention that the court’s jury charges, as delivered, contained any legal error.
C. Analysis of Plaintiff’s Contentions
Ms. Bull contends that, although the court’s jury instructions were
legally correct, the verdict sheet in effect incorporated an erroneous view of the
law.
First, Ms. Bull contends that an employer’s failure to provide a
reasonable accommodation is adverse employment action. The state case law
cited above presents the accommodation element and the resulting adverse
employment action (commonly, termination) as separate elements. But they
may, Bull says, be the same thing. Implicit in Bull’s first argument is a
contention that “termination” was superfluous to her case. In her account, the
McDonnell Douglas requires that a plaintiff show “(i) that he belongs to a
[protected class]; (ii) that he applied and was qualified for a job for which the employer
was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv)
that, after his rejection, the position remained open and the employer continued to
seek applicants from persons of complainant’s qualifications.” McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (U.S. 1973); see also Maher v. New Jersey Transit
Rail Operations, Inc. 125 N.J. 455, 480-81 (1991)(stating disparate treatment test in
disability discrimination setting).
4

10

jury’s finding that UPS failed to accommodate her disability is sufficient; its
negative answer to the question whether she was terminated is irrelevant.
Second, Bull contends that adverse employment action (here,
termination) is not an independent consideration, but merely the harm that
emanates from the employer’s failure to reasonably accommodate. Thus, she
says, the question of whether she was terminated (assuming it should have
been posed at all) should not have been posed separately. The termination
issue should have been combined with the “accommodation” issue in a single
question, in a manner that reflected their “proper causal relationship.” Implicit
in Bull’s second argument is an attempt to fuse the concepts of “reasonable
accommodation” and “termination.” In her account, the two must rise or fall
together, and the jury should not have been given interrogatories that allowed
them to—as they did—find the first but not the second. The jury, she says, was
denied the opportunity to find “causation” between the two.
1.

The parties presented termination as a contested factual
issue, and the jury was properly asked to resolve it

The above arguments boil down to a contention that termination of
employment, as such, is a superfluous consideration. Failure to accommodate,
Ms. Bull says, is itself sufficient to make her case. In the alternative, she
argues that failure to accommodate and termination should have been
combined and presented to the jury in a causal context.
One threshold problem with these contentions is that they are
inconsistent with the manner in which Bull postured the issues for decision
before trial, in the pretrial order, and in the first, abortive trial. Whether or not
an adverse employment action must involve termination, Ms. Bull always
contended that the adverse employment action in her particular case was
termination. The fact, or not, of termination was a hotly contested factual
issue. The parties jointly submitted “termination” to the court as a factual
issue that the jury would have to resolve, yes or no.
Thus the “LIST OF LEGAL ISSUES” in the PTO began as follows:
1. Whether UPS terminated plaintiff’s employment on April 4, 2006, due
to her disability.
2. Whether UPS terminated plaintiff’s employment on April 4, 2006,
because she sought workers’ compensation benefits.
(PTO p. 64). One of Bull’s key factual contentions in the Pretrial Order was
that, on or about April 4, 2006, a UPS supervisor told her that “you no longer
work for UPS.” (PTO ¶94). She was adamant in the face of UPS’s denials that
she had been “terminated.” (Id. at ¶102. In short, Bull consistently maintained,

11

as to both of her causes of action, that she was fired, in so many words, on
April 4, 2006.
Bull also presented termination as a separate legal element of her case.
In her trial brief, Bull stated the legal elements of her prima facie case of failure
to accommodate as follows: “1. She was disabled within the meaning of the law;
(2) she was qualified to perform the duties of his position and had been
performing [j her work at a level that met UPS legitimate expectations; and (3)
she nevertheless had been fired.” (Pltf.’s Tr. Brf. pp. 2-3 (emphasis added)
(citing LaResca v. American Tel. & Tel., 161 F. Supp. 2d 323, 329 (D.N.J.
2001)). As Bull acknowledged in her presentation of the legal issues to the
Court, the issues of failure to accommodate and termination (“firing”) are not
fused in the case law; the former is element 2 and the latter is element 3. She
asserted, correctly in my view, that the employer was obligated to consider and
discuss “reasonable accommodation before firing, demoting or refusing to hire
or promote a person with a disability....” (Id. at p. 6). And the jury was so
charged, at the parties’ request and without objection. (See Court’s Instructions
to Jury, 11/26/l3Tr. at 12:16-14:16).
According to Bull’s presentation of her case, on March 29, 2006, UPS
received a doctor’s note saying that she could lift no more than ten pounds
overhead. And five days later, on April 4, 2006, without discussing a
reasonable accommodation with her, UPS fired her—i.e., told her explicitly that
5
she did not work there any more.
Interrogatories 3 and 4, concerning termination, were not necessary,
according to Ms. Bull; because adverse action is not necessarily termination,
the jury should not have been asked about it. But termination is the particular
adverse action that Bull was claiming. Again and again, she stated that the jury
would have to determine whether she was fired on April 4, 2006.
Given the sharply focused and highly contested factual issue of whether
UPS fired Bull on April 4, 2006, it seemed best to ask the jury directly whether
termination had occurred. The jury interrogatories did no more than ask the
jury whether the facts as alleged by Bull were true. The jury answered “No.” It
agreed that UPS had not offered a reasonable accommodation, but also found
that UPS never fired Bull, as she had alleged.

Counsel for Ms. Bull also contended, in his closing argument to the jury, that
UPS’s actions amounted to a termination in fact, even if UPS did not explicitly fire her.
(Summation of Mr. Zatuchni, 11/25/13 Tr. at 95:25-97:7). Bull never requested that
the jury be instructed as to, e.g., constructive discharge. The court’s instructions did
not rule out such a theory of termination, however. Counsel was free to, and did,
argue it as a commonsense inference. (See id.).
5

12

Plaintiff now posits that a set of facts different from the one she alleged
might also have entitled her to relief; the jury interrogatories were erroneous,
she says, because they did not explicitly pose an alternative scenario under
which she might prevail. But the jury instructions fairly presented the jury
with the facts as she asserted them. And in fairness to the defendant, the
Court could not permit the plaintiffs case to be such a moving target.
The jury’s finding that the alleged “firing” never occurred exploded
Plaintiff’s simple scenario. Of course, UPS, presented with a doctor’s note,
could not respond by simply firing Plaintiff—but, as the jury found, UPS did
not do that.
Why, then, would the Plaintiff present the issue as one of “firing” if there
are other circumstances under which UPS could nevertheless have been found
liable? No doubt because those other circumstances were fraught with highly
complicated issues. For example, as the jury was explicitly instructed, when a
disability arises, both the disabled employee and the company must cooperate
in good faith in an interactive process to design a reasonable accommodation.
(Court’s Instructions to Jury, 11/26/ 13 Tr. at 16:13-21).
Because—as the jury found—UPS did not immediately fire Plaintiff, the
matter necessarily entered, or should have entered, that “discussion” phase.
And that directly implicates the ensuing cycle of miscommunication and the
notes from Doctor Farber’s office. As to that, the jury could readily have found
that UPS did not refuse to explore or discuss the issue. Rather, the evidence
painted a picture of someone who was placed on medical leave but stubbornly
remained in limbo, failing to take the necessary steps to provide the employer
proper medical evidence, or even a clear statement of position, as to her ability
to return to work (whether on an accommodated or un-accommodated basis).
To be sure, many of Plaintiff’s difficulties might have been attributable, not to
herself, but to her doctor or her union representative—but Plaintiff did not sue
her doctor, and she did not sue her union for breach of the duty of fair
representation. She sued UPS for discrimination, and she alleged,
unsuccessfully as it turned out, that UPS fired her on April 4, 2006.
2.

Combining the elements of reasonable accommodation and
adverse action! termination

Plaintiffs arguments, as noted above, rely on the merging of the issues of
reasonable accommodation and termination. For the reasons stated above, the
factual issues as presented properly called for a pure jury finding, yes or no,
as to whether plaintiff was fired. But setting that aside, I now discuss the
notion that the verdict sheet’s isolation of the question of termination was
erroneous because it did not define termination as something caused by a
failure to accommodate. (See Pltf’s Br. Supp. Mot. at pp. 19-20).
13

That issue is most sharply presented by Plaintiff’s second issue, i.e., the
objection to the order and wording of the jury interrogatories. Plaintiff objected
to Interrogatories 3 and 4, contending that they should be replaced by an
alternative, proposed interrogatory. Plaintiff’s proposed interrogatory, inserted
after the current Interrogatory 8, would have asked whether “UPS terminated
Ms. Bull without making a required reasonable accommodation, and thereby
discriminated on the basis of disability.” (Tr. of Trial, 11/26/2013 Tr. at p. 3435).6

First, the case law, including the much-relied-upon Seiden, firmly
establishes that adverse employment action must be shown in order to prove
discrimination by failure to accommodate. And, at least thus far, the New
Jersey courts have never merged the two elements of failure to accommodate
and adverse employment action. See Seiden, 315 N.J. Super at 461 (actionable
discrimination exists where the employee “is not reasonably accommodated
and suffers an adverse employment action...”); Shiring, 90 F.3d at 831;
discussion of elements at pp. 9-10, supra.
The New Jersey Supreme Court, in dicta, has “refrain[ed] from resolving
[1 whether a failure to accommodate unaccompanied by an adverse employment
consequence may be actionable.” Victor v. State, 203 N.J. 383, 422 (2010). It
acknowledged the possibility of an actionable failure to accommodate despite
the lack of any “identifiable” adverse action. Yet it did not rule affirmatively.
See id.; see also Durham v. Atl. City Elec. Co., 2010 U.S. Dist. LEXIS 103998,
28-29 (D.N.J. Sept. 28, 2010) (Kugler, J.). Plaintiff seizes upon this reservation
of the issue; but the issue was pretermitted, not decided, by the New Jersey
Supreme Court. Absent a state Supreme Court decision, the case law cited
above, which is contrary to plaintiff’s position, is my best guide. I can discern
no trend that would allow me to predict confidently that the New Jersey
7
Supreme Court would decide this issue in a manner favoring plaintiff here.

See also Pltf’s Br. Supp. Mot. at 19 (“UPS’s failure to provide such a
reasonable accommodation resulted in and/or caused an adverse employment action!
termination! loss of employment to Ms. Bull.”) This formulation, in Plaintiff’s posttrial brief, perhaps better expresses the objection, but it is not precisely the one that
Plaintiff proposed at trial.
6

“[Tin the absence of guidance from the state’s highest court, we must look to
decisions of state intermediate appellate courts, of federal courts interpreting that
state’s law, and of other state supreme courts that have addressed the issue,” as well
as considered dicta, scholarly works, and other sources of information. Norfolk
Southern Ry. Co. v. Basell USA Inc., 512 F.3d 86, 92 (3d Cir. 2008) (quoting Koppers
Co., Inc. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1445 (3d Cir. 1996)).

14

And of course I am doubly reluctant to predict a state court’s holding as to
issues that plaintiff did not squarely present factually in this case.
Second, nothing in Seiden or any of the cited materials supports
Plaintiff’s view that an employer who does not immediately accommodate the
employee based on a doctor’s note has ipso facto terminated the employee,
satisfying the adverse action element. Even the Victor court’s dicta stop short of
any such rule of law. Under currently prevailing law, asking the jury whether
Ms. Bull was terminated was not only proper, but required.
Third, the rule proposed by Ms. Bull would subvert the requirement that
an employer, faced by a claim of impairment, must enter into a dialogue with
the employee in an attempt to work out whether a reasonable accommodation
is feasible, before taking adverse employment action. See p. 10, supra (citing
Tynan, 351 N.J. Super. at 400-01; Mengine, 114 F.3d at 420-42 1; Taylor, 184
F. 3d at 317-18). If failure to provide an immediate accommodation were
tantamount to termination, then the time for pre-termination dialogue would
be over before it began. That concern about jumping the gun is especially
appropriate in a case like this one, where plaintiff, even in her complaint, did
not specifically assert failure to accommodate, but only general “handicap
discrimination.” The reasonable accommodation issue entered this litigation
when UPS asserted, as a defense, that Bull was unable to perform her job. See
p. 9, supra (citing Viscik v. FowlerEquzment Co., 173 N.J. 1, 19-20 (2002)).
Fourth, there is no support for Plaintiff’s view that causation is an
element of the cause of action, unexpressed in the case law but nevertheless
fundamental, which links the second and third elements. Nothing in the case
law requires the Court to set up termination as something which, by its nature,
results from reasonable accommodation and therefore must be considered as
part of a single package. Seiden’s dicta lends an scintilla of support to
Plaintiff’s view, 315 N.J. Super at 465 (stating that “the harm to be remedied is
the adverse employment action which resulted from the failure to
accommodate”). I take this, however, to mean that the adverse employment
action “resulted” from the failure to accommodation in the sense that the
employer fired (or otherwise penalized) the employee because of the employee’s
un-accommodated disability. I do not take it to mean that failure to
accommodate and adverse employment action are the same thing, or that the
existence of the first implies the second. Seiden’s formulation of the elements
omits any mention of causation; it uses a simple, conjunctive ‘and’ to separate
the element of plaintiff’s ability to work with an accommodation from the
element of adverse action, id. at 461 (“is not reasonably accommodated and
suffers an adverse employment action...”), 465-66 (listing three essential
elements). Plaintiff’s counsel was free to argue about the relationship of the
elements. But because causation is not an element, there is no error in the
court omitting words such as ‘caused’ or ‘resulted from,’ or in placing
15

interrogatories about termination before (or after) those about reasonable
accommodation. In sum, nothing about the interrogatories misrepresents or
fails to adequately set forth the essential elements of Plaintiff’s claim for the
jury’s consideration. McNally, 815 F.2d at 266; United States v. 564.54 Acres of
Land, 576 F.2d at 987-988; Inter Med. Supplies, 975 F. Supp. at 698.
Plaintiff’s contentions rise or fall with her expanded view of the law,
which I do not accept. The motion comes nowhere near establishing that the
particular wording of the interrogatories, which is within the court’s discretion,
introduced legal error or unfairly prejudiced her case. The proposed alternative
interrogatories differ in wording, but not in legal substance, from the verdict
sheet that was used. And the verdict sheet that was used follows the issues as
Plaintiff presented them, and the elements as established in the New Jersey
case law.
The motion for a new trial based on the wording of the jury
interrogatories is therefore denied.
II.

Whether the Jury’s Answers to the Verdict Sheet’s
Interrogatories are Inconsistent, Warranting Judgment
Notwithstanding the Verdict or a New Trial

Ms. Bull’s second argument is that “the jury’s interrogatory answers in
the verdict sheet are irreconcilable and inconsistent with each other, thus
necessitating a directed verdict in favor of Ms. Bull or a new trial.” (Piti’s Br.
Supp. Motion at Point II, p. 21). Ms. Bull states that the jury’s answers to
Interrogatories 3 and 4 (finding no termination and thus no discrimination) are
“entirely inconsistent” with its answers to Interrogatories 5 through 8 (finding
that UPS failed to reasonably accommodate Ms. Bull’s disability). “[B]oth
findings cannot be true at the same time or otherwise co-exist with each other,”
says Plaintiff. (Id.).
This motion is brought pursuant to Federal Rule of Civil Procedure 49. In
particular, Ms. Bull contends that Rule 49(b)(4) applies. (Id.). It provides that:
When the answers [to verdict sheet interrogatories] 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). In this situation, “two choices are open to the district
court. It may return the jury for further consideration of its answers and
verdict, or it may order a new trial. No immediate judgment may be entered
when the jury’s answers are inconsistent with each other and one or more is
16

inconsistent with the general verdict, however.” 98 Charles Alan Wright and
Arthur R. Miller, Federal Practice and Procedure Civil § 2513, n.22-23 (3d Ed.
2008). Indeed, directing a verdict is an option only where the jury’s answers are
internally consistent with each other, but inconsistent with the general verdict.
See Fed R. Civ. P. 49(b)(3).
First, I rule out judgment as a matter of law notwithstanding the verdict.
Ms. Bull claims that the answers are inconsistent with each other, a situation
that permits, at most, a new trial. See Fed. R. Civ. P. 49(b)(4). Ms. Bull also
fails to argue that the answers are “inconsistent with the general verdict.” See
Fed. R. Civ. P. 49(b)(4). Her contention seems to be that one answer is, and the
other isn’t.
I turn to the new trial motion, with the proper Rule 49 standard in mind.
Ms. Bull’s complaint that the jury’s findings are mutually inconsistent rests on
her legal contention that a failure to reasonably accommodate is termination.
Therefore, she reasons, a jury cannot answer “yes” to one interrogatory and
“no” to the other. As discussed above, however, even Seiden, the case on which
she relies, holds that adverse employment action is a separate element, and
nowhere suggests that it is automatically fulfilled if the element of failure to
accommodate is established. 315 N.J. Super at 461, 465.
Accordingly, I will deny this component of Plaintiff’s post-trial motion as
well.

III.

Whether UPS was Entitled to Judgment as a Matter of Law On
the Basis of Preemption by Federal Labor Law

UPS cross-moves for judgment as a matter of law, renewing the Rule 50
motion it made at the close of Plaintiff’s case and incorporating by reference the
papers it filed at that time. The gist of UPS’s argument is that the Ms. Bull’s
LAD claims necessarily require interpretation of the terms of the collective
bargaining agreement (CBA) to which she was a party. Thus, says UPS, Section
301 of the Labor Management Relations Act (LMRA) preempts Ms. Bull’s LAD
suit and requires her to pursue the dispute resolution mechanisms set forth in
the CBA. In support, UPS cites a number of references to the CBA in the
evidence at trial. (Dfd’s Br. Supp. Mot. Dir. Verdict (ECF No. 98) at pp. 4-2 1).
LMRA preemption arises from the provision stating: “Suits for violation of
contracts between an employer and a labor organization representing
may be brought in any
employees in an industry affecting commerce
district court of the United States having jurisdiction of the parties.” LMRA §
301, 29 U.S.C. § 185(a). The Supreme Court has held that “questions relating
to what the parties to a labor agreement agreed, and what legal consequences
.

17

.

.

were intended to flow from breaches of that agreement, must be resolved by
reference to uniform federal law, whether such questions arise in the context of
a suit for breach of contract or in a suit alleging liability in tort.” Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 211 (1985). Thus, Section 301 preemption comes
into play where “resolution of a state-law claim depends upon the meaning of a
collective-bargaining agreement.” Lingle v. Norge Div. of Magic Chef; Inc., 486
U.S. 399, 406 (1988).
Such preemption, however, is limited in scope: “Not every dispute
concerning employment, or tangentially involving a provision of a collectivebargaining agreement, is preempted by § 301 or other provisions of federal
labor law
it would be inconsistent with congressional intent under that
section to pre-empt state rules that proscribe conduct, or establish rights and
obligations, independent of a labor contract.” Lueck 471 U.S. at 211-2 12. The
LMRA thus has no preemptive effect where there are “state rules that proscribe
conduct, or establish rights and obligations, independent of a labor contract,”
id. at 212, or “where the state law claim can be resolved without substantially
interpreting the collective bargaining agreement itself.” Id. at 220; see also
Lingle, 486 U.S. at 409-10. The relevant inquiry is whether “resolution of
Plaintiff’s claim [1 require[s] ‘interpretation’ of the [relevant] CBA,” or at least
will “involve ‘a substantial issue of construction and operation of the CBA[.]’”
LaResca v. AT&T, 161 F. Supp. 2d 323, 330-31 (D.N.J. 2001) (Bassler, J.). That
a case involves “reference to or consideration of the terms of a collectivebargaining agreement” does not warrant preemption, as this does not signal
that the litigated issues require interpretation of the CBA. Id. at 330 (quoting
Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 749 (9th Cir. 1993)). A
court must, on a “case by case basis,” determine whether the state law claims
are “inextricably intertwined with considerations of the terms of the labor
contract.” Lueck, 471 U.S. at 213, 220.
.

.

.

Applying the principles cited above, judges of this Court have held that
“[s]tate discrimination laws are generally not preempted by federal labor law.”
LaResca, 161 F. Supp. 2d at 330. Echoing earlier precedent from this district,
LaResca “concluded that the LAD was not pre-empted by § 301 of the LMRA
because ‘state law discrimination claims under the NJLAD are derived
independently from state law, and not from the obligations assumed by the
parties under the labor agreements.”’ Id. (quoting Carrington v. RCA Global
Communications, Inc., 762 F. Supp. 632, 641-42 (D.N.J. 1991) (Debevoise, J.)).
In LaResca, a plaintiff who had suffered epileptic seizures was asked to
work a night shift. Because he could no longer drive and required public
transit that was unavailable late at night, he requested as an accommodation
that he be put on the day shift. Eventually he was terminated. Defendant, in
response to his state law discrimination claim, argued that the requested
accommodation was not feasible because “Article 38 of the 1995 CBA, which
18

mandates that shifts be assigned based on seniority, precluded it from granting
Plaintiff’s request for change to a day shift.” Id. at 329. Judge Bassler rejected
that preemption argument. There was no real dispute over the meaning or
validity of the CBA; rather, the defendant, like UPS here, asserted it as a
defense to its failure to offer a reasonable accommodation. The issue, in short,
was failure to accommodate, not seniority. Id. at 331.
Here, UPS asserts that “multiple provisions of the CBA were presented
and discussed in the trial evidence.” (Dfd’s Br. Supp. Mot. Dir. Verdict at pp. 49). For example, the jury’s consideration of “termination” would naturally
invoke the CBA’s termination procedures. Ms. Bull’s entitlement, or not, to see
a third party doctor, and other matters of medical procedure, are similarly
governed by the CBA. UPS cites other, similar examples.
The CBA may have been relevant to the determination of certain issues of
fact, but there is no dispute about what it says, what it means, whether it is
valid, or whether Ms. Bull is bound by it. Like the defendant in LaResca, UPS
cites the CBA to bolster its case and justifr its actions. That is perfectly
permissible, but it does not transform this case into one about, or arising from,
the CBA. Rather, this is a state-law LAD case based on “rules that proscribe
conduct” and on “establish[ed] rights and obligations, independent of a labor
contract,” Lueck at 211-212. Whether Ms. Bull was reasonably accommodated
or terminated are factual issues as to which the CBA is relevant, but not
determinative. Ms. Bull’s LAD claims are not preempted by virtue of the CBA.
Cf LaResca, 161 F. Supp. 2d at 330; Carrington, 762 F. Supp. 632, 64 1-42.
Accordingly, I will deny the motion of UPS pursuant to Rule 50.
CONCLUSION
For the reasons stated above, In accord with the above determinations, I
shall DENY Plaintiff’s motion for judgment notwithstanding the verdict and/or
a new trial. I shall also DENY Defendant’s renewed motion for a directed verdict
based on preemption. I shall enter Judgment in accord with the jury’s verdict
in favor of Defendant.
Dated: Newark, New Jersey
July 1, 2014

HO

19

.

KEVIN MCNULTY, U.SJYJ