Disability Law

$6M Verdict Against UPS in WC Retaliation Case Set Aside

By David A. McCranie, Esq.

Section 440.205, Fla. Stat., provides:

Coercion of employees.--No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.

The Supreme Court of Florida has held that violation of this section by an employer creates a private cause of action in tort in favor of an employee.  See Smith v. Piezo Technology, 427 So.2d 182 (Fla. 1983).

In Thigpen v. UPS, Inc., decided by the Fourth DCA on 9/10/2008, UPS fired Thigpen, one of its delivery  drivers.  UPS insisted that Thigpen's employment was terminated because of his failure to deliver a package to a customer, but Thigpen asserted that this reason was pretextual.  The real reason, he said, was in order to retaliate against him for his having previously filed a workers' compensation claim.  In support of his claim, Thigpen introduced a company e-mail which had urged UPS supervisors to crack down on "injury repeaters," that is, on employees who had sustained multiple injuries on the job and who frequently sought workers' compensation benefits.  Thigpen had in fact been injured on the job on multiple occasions.  The jury agreed with Thigpen, awarding him $6M in damages, including about $670,000 in economic damages, and $5.3M in punitive damages.

UPS filed a post-verdict motion for new trial, however, arguing that the trial court should not have admitted the testimony of Findeisen, one of its former supervisors.  Findeisen, an employee who last worked for UPS in 1987, had been allowed to testify that while working for UPS he had been taught how to "set up" undesirable employees for termination by way of a fraudulent "presheet audit."  Under that practice, Findeisen would remove a package from the targeted driver's truck and then falsify the records to make it appear that the driver had not bothered to deliver it.  The trial court agreed with UPS that this testimony was not relevant because it was too remote in time, place, and purpose.  The trial court also agreed that the testimony was inadmissible under §90.404(1), Fla. Stat., which precludes the admission of evidence of a person's character to prove action in conformity with that character on a particular occasion, and under §90.404(2), which bars the admission of evidence of other "crimes, wrongs, or acts" when used "solely to prove bad character or propensity."

On appeal, the Fourth DCA affirmed the trial court's decision to grant a new trial.

Full post as published by Florida Workers’ Compensation Law Blog on September 13, 2008 (boomark / email).