Schnabel v. Nordic Toyota, Inc.

Schnabel v. Nordic Toyota, Inc.  (97-336); 168 Vt. 354; 721 A.2d 114

[Filed 2-Oct-1998]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 97-336


Keith Schnabel                           Supreme Court

                                         On Appeal from
     v.                                  Chittenden Superior Court

Nordic Toyota, Inc. et al.               June Term, 1998


Shireen Avis Fisher, J.

       Christopher J. McVeigh of Paul, Frank & Collins, Burlington, for
  Plaintiff-Appellee.

       Robert A. Mello and John H. Klesch (On the Brief), South Burlington,
  for Defendants-Appellants.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.   Plaintiff-employee Keith Schnabel sustained a
  work-related injury, recovered, and then sought reinstatement to suitable
  employment under Vermont's Workers' Compensation statute.  When
  defendant-employer Nordic Toyota did not offer the first available suitable
  position, Schnabel sued for reinstatement under 21 V.S.A. § 643b, and
  alleged handicap discrimination in violation of 21 V.S.A. § 495(a).  After
  a bench trial, the superior court found liability under § 643b and awarded
  damages. Nordic Toyota appeals its liability and the award of damages based
  on Schnabel's alleged failure to mitigate. Schnabel cross-appeals the
  court's rulings on damages and its failure to issue findings and
  conclusions on the § 495(a) discrimination claim.  We affirm.

       The relevant facts are not in dispute.  The record reflects that
  Schnabel was injured in 1991 while working for Nordic Toyota as an
  automobile mechanic. The injury occurred when an alignment lift failed and
  caused a car to drop and hit his head.  After a brief absence, Schnabel
  returned to work, and eventually was promoted to shop foreperson with
  supervisory

 

  responsibility over two technician teams comprising seven technicians in
  all. In August of 1992, Schnabel left work because of increasing back pain
  resulting from the 1991 accident.  In the fall of 1993, after receiving
  medical treatment for his injury, Schnabel believed he was ready to return
  to work.  In November of that year, he was evaluated by a physician with
  the Spine Institute of New England in Williston and scheduled to enroll in
  a "work  hardening" program designed to help him manage the psychological
  and emotional  aspects of his pain and improve his strength and endurance
  for work.

       In December of 1993, Schnabel learned that the Nordic Toyota employee
  who had replaced him as shop foreperson intended to quit the position.  On
  December 17, 1993, Schnabel's attorney sent a letter to Nordic Toyota 
  expressing Schnabel's interest and preparedness to be reinstated to that 
  position, and asserting his rights to reinstatement pursuant to 21 V.S.A. §
  643b.

       On January 6, 1994, Nordic Toyota's director of human resources spoke 
  with Schnabel's attorney and indicated that there was no foreperson's job
  available at Nordic Toyota.  In a subsequent letter dated January 19, 1994,
  the director explained that the position had been eliminated in 1992 and
  replaced by the position of "Technician Group Leader" with a different pay
  structure.  The director also represented that the group leader position
  for which Schnabel applied had been filled prior to the January 6, 1994
  phone call.  The letter further stated: "As previously discussed, because
  of Mr.  Schnabel's own actions, and the hostile environment he has created
  in Nordic  Toyota, Inc., we can only offer him employment in one of our
  other facilities."  

       The January 19, 1994 letter to Schnabel from the human resources
  director also contained an invitation to interview for a position as a
  "Service Writer" at Nordic Ford, a division separate from Nordic Toyota,
  but within the same parent company.  Schnabel rejected the invitation.  In
  March of 1995, he was offered a position as service writer at Nordic
  Toyota, which he accepted.

       Schnabel sued Nordic Toyota for failure to reinstate him pursuant to 
  21 V.S.A. § 643b

  

  and for handicap discrimination under 21 V.S.A. § 495(a).  He sought
  damages for past and future lost wages, as well as emotional and punitive
  damages. The court granted judgment for Nordic Toyota on emotional and
  punitive damages after the close of Schnabel's evidence.  After trial, the
  court found Nordic  Toyota liable for violation of Schnabel's reinstatement
  rights under 21 V.S.A.  § 643b and awarded damages for past lost wages.  It
  found that Schnabel was capable of performing the essential functions of
  the group leader position when it became available in January of 1994, and
  every conceivable function within a few days after the position became
  available.  The court awarded damages for lost wages from 1994, 1995, and
  1996.  It found, however, that an award of future damages was not justified
  because Schnabel had returned to the same career track he would have been
  on had he been offered the group leader position in 1994, and evidence on
  the proper amount of future damages was speculative.  The court also stated
  that the evidence presented did not support punitive damages.  It did not
  issue findings and conclusions on the handicap discrimination claim under
  21 V.S.A. § 495(a).

       On appeal, Nordic Toyota claims the court erred in finding liability
  under 21 V.S.A. § 643b and claiming that the award of damages should have
  reflected Schnabel's capacity to  mitigate his damages by accepting the
  service writer position with Nordic Ford.  Schnabel cross-appeals and
  claims the court erred by failing to issue findings and conclusions on the
  handicap discrimination claim and failing to award future damages as well
  as emotional and punitive damages.

      I.  Liability for Failure to Reinstate Under 21 V.S.A. § 643b(b)

       Under Vermont's Workers' Compensation statute, an injured worker is
  entitled to reinstatement to his or her former position or a suitable
  alternative position upon recovery, provided the recovery occurs within two
  years of the onset of the disability.  See 21 V.S.A. § 643b(b).  The
  statute further provides that:

     [a] worker who recovers within two years of the onset of the 
     disability shall be reinstated in the first available position 
     suitable for the worker given the position the worker held at 
     the time of the

 

     injury.

  21 V.S.A. § 643b(b).  Under the statute, "`[r]ecovery' means that the
  worker can reasonably be expected to perform safely the duties of his or
  her prior position or an alternative suitable position."  Id. § 643b(a)(2). 
  Nordic Toyota's central claim on appeal is that the court erred in finding
  liability.

                           A.  Schnabel's Recovery

       Nordic Toyota claims the court erred in finding that Schnabel had
  recovered sufficiently to perform the duties required of the group leader
  position. The issue is whether Schnabel, in early 1994, could "reasonably
  be  expected to perform safely the duties" of the group leader position in 
  satisfaction of 21 V.S.A. § 643b(a)(2).

       "This Court will not set aside findings of fact unless, taking the 
  evidence in the light most favorable to the prevailing party and excluding
  the effects of modifying evidence, they are clearly erroneous."  Jacobs v.
  Jacobs,  144 Vt. 124, 126, 473 A.2d 1165, 1167 (1984).  Findings will not
  be disturbed merely because they are contradicted by substantial evidence;
  rather, an appellant must show there is no credible evidence to support
  them.  See Community Feed Store, Inc. v. Northeastern Culvert Corp., 151
  Vt. 152, 154-55, 559 A.2d 1068, 1069 (1989).  Where the trial court has
  applied the correct legal standard, the Supreme Court will uphold its
  conclusions of law if reasonably supported by the findings.  See Highgate
  Assocs., Ltd. v. Merryfield, 157 Vt. 313, 315-316, 597 A.2d 1280, 1281-82
  (1991).

       According to the record, Schnabel underwent surgery in December of
  1992 for a disc problem related to the 1991 injury and thereafter commenced
  a period of rehabilitation.   Schnabel's treating surgeon placed him at an
  "end  medical result" on August 11, 1993, which permitted subsequent "work
  hardening" rehabilitation to improve his strength and pain management.  Dr. 
  Rowland Hazard, a specialist in the treatment of back pain and a staff
  member of the New England Spine Institute, stated it was more likely than
  not that Schnabel was capable, as of February 19, 1994, of performing most,
  if not all, of the duties of Group Leader

 

  with the exception of repetitive lifting of fifty pounds.

       Schnabel testified that in January 1994 he could have satisfactorily
  performed the duties of a full-time mechanic at Nordic Toyota -- a position
  with physical demands similar to those required of a group leader.  The
  record indicates that the group leader position affords the person so
  employed the flexibility to assign physically demanding tasks to others. 
  Although the court acknowledged conflicting evidence in the medical records
  concerning Schnabel's ability to return to work in the fall of 1993, the
  record provides  support for the court's conclusion that Schnabel's
  disability "had come to a  final medical resolution by August 11, 1993,"
  and that Schnabel could  reasonably be expected to perform safely the
  duties of group leader beginning in January of 1994.

                B.  Notice to Employer of Schnabel's Recovery

       Nordic Toyota next claims that even if Schnabel had sufficiently
  recovered to perform the duties of the group leader position, he failed to
  notify it of that fact and therefore responsibility for reinstatement under
  § 643b never attached.  According to Nordic Toyota, the court misapplied
  the statute by charging it with the burden of discovering the status of
  Schnabel's  recovery.  The factual premise underlying this argument,
  however, is incorrect.

       The court found that Nordic Toyota "had ample notice that [Schnabel] 
  wanted the job," and had received all medical records relevant to
  Schnabel's  recovery.  Thus, it was aware that Schnabel had reached a
  "medical end result" and was enrolling in a work hardening program. 
  Furthermore, in mid-December of 1993, Schnabel's attorney contacted Nordic
  Toyota to inquire about the  departure of Schnabel's replacement from the
  group leader position and to  request that Schnabel be reinstated.  The
  letter specifically referred to Schnabel's reinstatement rights under §
  643b and asserted that the group  leader position would be appropriate
  "given [Schnabel's] physical capabilities  and his automotive acumen." 
  Therefore, the claim of error fails because  Nordic Toyota had full notice
  of Schnabel's medical condition and preparedness  to work.

 

                    C.  Pretextual Reason for Not Hiring

       Nordic Toyota next claims that the court improperly read a mens rea
  element into the statute when it found that the "stated reasons for failing
  to offer Mr. Schnabel the group leader position were pretextual."  The
  court  found, and the record reveals, that in early 1994, Nordic Toyota did
  not communicate its concern that Schnabel had not recovered sufficiently to
  assume the group leader position to either Schnabel or his attorney.  The
  record reveals that Nordic Toyota's primary concern was the hostile work
  environment  allegedly created by Schnabel. Nordic Toyota now claims that
  because there was, in fact, a medical reason to deny hiring Schnabel as
  group leader, the fact that it had other reasons for not offering him the
  position is irrelevant.  Its failure to make any reference to Schnabel's
  health at the  time of the hiring decision undermines the credibility of
  its assertion that Schnabel had not recovered to such a degree that the
  group leader position would be suitable.

       Assuming, arguendo, that Nordic Toyota is correct in its assertion
  that other reasons for not reinstating Schnabel are irrelevant, Nordic
  Toyota's claim of error remains predicated on its assertion that there
  existed a medical reason to deny reinstating Schnabel to the group leader
  position.  The record, however, supports the court's finding that Schnabel
  had recovered  sufficiently to assume the duties of a group leader. 
  Moreover, Nordic Toyota failed to generate any evidence that its refusal to
  reinstate Schnabel to the group leader position was based even partly upon
  its concerns about the status of Schnabel's medical condition. 
  Accordingly, Nordic Toyota's attempt to assign error to the court's
  "pretextual" reference fails.  See Greenberg v.  Hadwen, 145 Vt. 112, 116,
  484 A.2d 916, 918 (1984) (unessential findings, even if incorrect, are not
  grounds for reversal).

          D.  Suitable Employment: The "Service Writer II" Position

       Nordic Toyota next argues that it avoided liability under § 643b by
  offering Schnabel the service writer position in late January, 1994. 
  Pursuant to § 643b(b), once an employee has recovered "[t]he employer . . .
  shall  reinstate the worker . . . in the first available position

 

  suitable for the worker . . . ." 21 V.S.A. § 643b(b).  The trial court
  found  that, for all practical purposes, the group leader position was the
  same as the foreperson job that Schnabel previously held.  Nordic Toyota's
  refusal to  hire Schnabel for the group leader position provides the basis
  for liability because it was the "first available position suitable for the
  worker."  Id. Furthermore, Nordic Toyota's liability for its failure to
  comply with §  643b(b) is not averted by its subsequent offer of the
  service writer position. The record supports the court's finding that the
  service writer position  involved work on Ford vehicles, that Schnabel was
  a master technician for Toyota vehicles and had no training or experience
  with Ford products, and, the Ford service writer position would pay
  substantially less than the group leader position.   We agree with the
  court's determination that the service  writer position was not an
  "alternative suitable position."

                 II.  Liability for Handicap Discrimination

       In his cross-appeal, Schnabel claims the court erred by failing to
  issue findings and conclusions on his claim of handicap discrimination
  under 21 V.S.A. § 495(a).  See V.R.C.P. 52(a) (In "all actions tried upon
  the facts  without a jury . . . the court shall, upon request . . . find
  the facts specially and state separately its conclusions of law thereon");
  Jacobs, 144  Vt. at 127, 473 A.2d  at 1167-68 (1984) (trial court must state
  facts essential to the disposition of the issues properly before the
  court).  As Schnabel concedes in his brief, the damages he sought under the
  handicap discrimination statute and the employment reinstatement statute
  were the same and thus, "the  Superior Court did not necessarily need to
  reach both issues to make Mr. Schnabel whole." Even if the court committed
  error by not issuing findings and  conclusions, the error was harmless in
  light of Schnabel's recovery of damages  from Nordic Toyota for its failure
  to reinstate him according to the terms of § 643b.  See Crampton v.
  Lamonda, 95 Vt. 160, 164, 114 A. 42, 43-44 (1921) (failure of court to
  issue findings immaterial to result does

 

  not prejudice requesting party and is therefore harmless).(FN1)


                                III. Damages

                          A. Mitigation of Damages

       Nordic Toyota claims that Schnabel should have mitigated damages by
  accepting the Nordic Ford service writer position offered in January of
  1994. Nordic Toyota claims Schnabel's damages should be reduced by $30,000,
  the  additional amount he would have earned had he accepted the job at
  Nordic Ford in January of 1994.

       There exists a general duty to mitigate damages.  See Cartin v.
  Continental Homes of N.H., 134 Vt. 362, 367, 360 A.2d 96, 100 (1976).  In
  the context of an employment dispute, an employee must make a good faith
  effort to find suitable alternative employment.  The record supports the
  court's  conclusion that Schnabel's rejection of the Ford service writer
  position did  not constitute a failure to mitigate damages.  Schnabel was a
  master technician for Toyota vehicles, he had no training or experience
  with Ford products, and, the Ford service writer position would pay
  substantially less than the group leader position.  Furthermore, both
  Schnabel and his vocational rehabilitation specialist described Schnabel's
  significant efforts to gain  employment commensurate with his experience
  and expertise during the time from January 1994 until March 1995, when
  Schnabel took a service writer position at Nordic Toyota.  There was no
  error.

                     B. Emotional and Punitive Damages.

       After Schnabel completed presentation of his evidence, Nordic Toyota
  moved for judgment as a matter of law.(FN2)  See V.R.C.P. 41(b)(2) (after
  plaintiff has completed presentation

 

  of evidence, defendant may move for dismissal on grounds that upon facts
  and law plaintiff has not shown right to relief).  Schnabel claims the
  court erred in granting the motion on the issues of intentional infliction
  of emotional distress and punitive damages.

       When reviewing a court's grant of a Rule 41(b)(2) motion, we must 
  consider "whether the court's fact findings are clearly erroneous, viewing
  the  evidence in the light most favorable to the prevailing party."  New
  England  Educ. Training Serv. v. Silver St. Partnership, 156 Vt. 604, 611,
  595 A.2d 1341, 1344-45 (1991) (citing Blais v. Blowers, 136 Vt. 488, 489,
  394 A.2d 1124, 1124 (1978)).

       Schnabel's assertion that the court erred in granting Nordic Toyota's
  motion for entry of judgment on the issue of intentional infliction of
  emotional distress appears in both of his briefs "unaccompanied by facts,
  law,  or reasoning, and therefore need not detain us."  KPC Corp. v. The
  Book Press,  Inc., 161 Vt. 145, 152, 636 A.2d 325, 329 (1993).  The Court
  will not search the record for errors inadequately briefed.  See Bishop v.
  Town of Barre, 140 Vt. 564, 579, 442 A.2d 50, 57 (1982) (citations
  omitted).

       As to Schnabel's claim regarding punitive damages, we begin by noting 
  that the purpose of punitive damages is to punish morally culpable conduct
  and to deter similar conduct in the future.  See Hilder v. St. Peter, 144
  Vt. 150, 164, 478 A.2d 202, 210-11 (1978).  Punitive damages may be awarded
  upon a showing of actual malice.  See Shortle v. Cent. Vermont Pub. Serv.
  Corp., 137 Vt. 32, 33, 399 A.2d 517, 518 (1979).  "This may be shown by
  conduct  manifesting personal ill will or carried out under circumstances
  evidencing insult or oppression, or even by conduct showing a reckless or
  wanton disregard of one's rights."  Id.  The court's factual findings
  contain no  reference to conduct on the part of Nordic Toyota that rises to
  the

 

  level of actual malice or reckless disregard of the plaintiff's rights.  
  Viewed in the light most favorable to Nordic Toyota, the evidence presented
  at trial does not support Schnabel's argument that the court's dismissal of
  his punitive damages claim was clearly erroneous.

                             C. Future Damages.

       Schnabel claims the court erred in failing to award future damages. 
  At trial, the court calculated Schnabel's damages in the form of lost wages
  from  the years 1994, 1995, and  1996 at $83,174.00.  It found, however,
  that due to his work as a mechanic for Nissan/Acura since 1995, Schnabel
  had "reinstalled  himself on his previous career track."  The court found
  that damages for  future lost earnings due to Nordic's failure to hire
  Schnabel as a Group  Leader in 1994 were "too speculative to calculate by a
  preponderance of the  evidence."  Schnabel claims error in the court's
  resolution of the future  damages issue for two principal reasons.  First,
  he argues that the record does not support the court's conclusion that he
  had reinstated himself on his  previous career track. Second, he notes that
  experts for both Nordic Toyota and Schnabel testified that he would suffer
  some amount of damages through the year 2000 and, thus, it was error to
  find that future damages were "too  speculative" to award.                                                                         

       In Haynes v. Golub Corp., 166 Vt. 228, 238, 692 A.2d 377, 383, (1997),
  we stated that when front pay is allowed, the damages must be "limited to a 
  reasonable period of time" and must not be "speculative."  In Haynes, the 
  trial court awarded future damages for a period of time beyond the normal
  retirement age even though there was no evidence that the plaintiff would
  continue working beyond that age.  We found the award "too speculative" and
  remanded for calculation of damages based on the range of evidence
  presented. See id.

       In the instant case, Schnabel's expert concluded that Schnabel will 
  suffer economic loss far into the future, and that Schnabel would never
  reach parity between earnings at Nordic Toyota had he been reinstated, and
  an alternative employment within his working life.  We agree with the trial
  court's finding that such evidence was too speculative to enable the court
  to  calculate damages for future lost earnings.  See Bartley-Cruz v.
  McLeod, 144 Vt. 263, 264, 476 A.2d 534, 535 (1984) (Supreme Court will not interfere if reasonable
  evidentiary basis supports court's findings).  Moreover, Schnabel does not 
  advance his argument by asserting that defendant's expert also estimated 
  future damages, since defendant's expert calculated Schnabel's total
  damages, including future damages, at $51,085.00, far less than the
  $83,174.00 which the trial court awarded for Schnabel's lost past wages. 
  There was a  reasonable evidentiary basis for the court's conclusion that
  $83,174.00 would  fully compensate Schnabel for his damages.  

       Affirmed.
  
                                   FOR THE COURT:



                                   _______________________________________
                                   Chief Justice


-----------------------------------------------------------------------------
                                  Footnotes



FN1.  Although the trial court's failure to make findings on the handicap
  discrimination claim may have affected the amount of attorney's fees
  awarded, Schnabel does not assign the fee award as error, and therefore
  this issue is beyond our consideration.

FN2.  In both Schnabel's reply brief and Nordic Toyota's response, the
  parties refer to the motion made by Nordic Toyota at the conclusion of
  Schnabel's case as a Rule 50 motion; likewise, both parties apply the
  standard of review applicable to the grant of a Rule 50 motion.  Rule 50,
  however, applies in jury cases only.  See V.R.C.P. 50; see also 9A C.
  Wright & A. Miller, Federal Practice and Procedure § 2523, at 246-47 (1995)
  ("The motions described in Rule 50 are available only in cases tried to a
  jury that has the power to return a binding verdict.  Thus, it does not
  apply to cases tried without a jury or to those tried to the court with an
  advisory jury.").  The rule applicable in a non-jury trial is V.R.C.P.
  41(b)(2).  See id.