2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-13-2015

Laureen Bull v. UPS Inc

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NOT PRECEDENTIAL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)

____________
2

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.
3

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 Liposky3asked 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.”
4

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.
5

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,7the 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.
6

[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). 
7

“[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 
8

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 LAD9requires 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.
9

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 
10

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. 
11

order denying Bull’s motion for a new trial, we will not reach the merits of UPS’s crossappeal. 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).