J-A04025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICIA PUJOLS                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

GOOD SHEPHERD REHABILITATION
NETWORK

                            Appellee                 No. 3078 EDA 2015


               Appeal from the Judgment Entered August 31, 2015
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 02519 December Term, 2013

BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                           FILED AUGUST 16, 2017

       Appellant Patricia Pujols appeals from the judgment, following a bench

trial, entered in favor of Appellee Good Shepherd Rehabilitation Network

(“Good Shepherd”) on her claims of retaliatory refusal to rehire and disability

discrimination. We affirm.

       Pujols filed suit against Good Shepherd in December 2013, raising a

single count for “Retaliation, Refusal to Hire, Refusal to Re-Hire, Violation of

Public Policy – Shick v. Shirey, 716 A.2d 1231 (Pa. 1998).” In October

2014, she amended her complaint to include a count for disability

discrimination under the Pennsylvania Human Relations Act (“PHRA”), 43

P.S. § 951.


____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A04025-17


       A non-jury trial was held on April 20 and 21, 2015. The evidence

presented at trial was largely undisputed: Pujols had been employed as a

Certified Nursing Assistant at Good Shepherd when she sustained a work-

related injury. After several months of modified light-duty work, and several

more months of disability leave, Pujols’ employment was terminated. 1 Pujols

received    workers’    compensation       benefits   both   before   and   after   her

termination, for a period of two years, until her benefits were suspended

following a proceeding before a workers’ compensation judge, who found

that she was fit to return to work. Pujols simultaneously appealed that

ruling,2 arguing that she was still too injured to work, and re-applied for

work at Good Shepherd in her former position. Good Shepherd requested

that Pujols submit a new medical clearance demonstrating that she was able

to perform the job duties without restriction; Pujols did not provide one, and

was not rehired.

       In support of her first count, Pujols argued to the trial court that Good

Shepherd did not rehire her out of retaliation for her appeal of her workers’

compensation claim; on her second count, she argued that Good Shepherd

discriminated against her on the basis of a perceived disability when it failed

____________________________________________
1
  Pujols did not and does not contest the termination of her employment at
that time.
2
 Pujols eventually lost her appeal of her workers’ compensation claim. See
Pujols v. W.C.A.B. (Good Shepherd Rehab Hosp.), No. 2278 C.D. 2014,
2015 WL 5457406 (Pa. Cmwlth., July 16, 2015).


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J-A04025-17


to rehire her. At no point during trial did Pujols make a motion for a directed

verdict. Following trial, the court entered findings of fact and conclusions of

law, and rendered a verdict in favor of Good Shepherd.

        Pujols filed a motion for post-trial relief in which she sought judgment

notwithstanding the verdict (“JNOV”) or, alternatively, a new trial. 3 Her

motion was denied by operation of law, and final judgment was entered in

favor of Good Shepherd on August 31, 2015.

        Pujols filed a timely appeal in which she presents the following issues

for our review:

        1. Does an employer violate the public policy set forth in Shick
        v. Shirey, 716 A.2d 1231 (Pa. 1998) by refusing continued
        employment and/or to rehire a worker because she exercised
        her rights under the Workers’ Compensation Act?

        2. In a retaliatory discharge claim, does a trial court abuse its
        discretion by entering judgment in favor of an employer that
        refuses to rehire an employee who has exercised her rights and
        whose benefits have been terminated under the Workers’
        Compensation Act?

        3. In a disability discrimination claim, does a trial court abuse its
        discretion by entering judgment in favor of an employer that:

           inquired about an applicant’s disability, contrary to 29 C.F.R.
            1630.13, which makes it unlawful for a covered entity to
            make inquiries as to whether an applicant is an individual with
            a disability or as to the nature or severity of such disability;

           considered and relied upon applicant’s workers’ compensation
            history during the pre-offer stage of employment;


____________________________________________
3
    Good Shepherd filed no response to Pujols’ post-verdict motion.


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          believed the applicant was disabled, but failed to identify any
           legitimate non-discriminatory reason for refusing to hire the
           applicant; and,

          refused to consider applicant for hire, based on her perceived
           disability, with or without reasonable accommodation?

Pujols’ Brief at 4-5. More broadly, Pujols argues that the trial court abused

its discretion by not granting Pujols’ post-trial motion for judgment

notwithstanding the verdict. See Pujols’ Brief at 3. Pujols does not raise on

appeal a claim that the verdict was against the weight of the evidence, and

does not request a new trial.4

       Good Shepherd argues that Pujols waived her right to request

judgment notwithstanding the verdict by failing to move for a directed

verdict during trial. Good Shepherd’s Brief at 23-27. The trial court did not

address waiver in its 1925(a) opinion, and it reviewed the merits of Pujols’

issues. We nevertheless agree with Good Shepherd that Pujols waived her

right to relief.

       “Post-trial relief may not be granted unless the grounds therefore, if

available, were raised by an appropriate method at trial.” Phillips v. Lock,

86 A.3d 906, 918 (Pa. Super. 2014) (citing Pa.R.C.P. 227.1(b)(1)). “[T]o

preserve the right to request a JNOV post-trial, a litigant must first request a

binding charge to the jury or move for a directed verdict or a compulsory
____________________________________________
4
 We note that, contrary to the request made in Pujols’ post-trial motion, a
new trial is the sole remedy where the verdict is alleged to be against the
weight of the evidence. See Lanning v. West, 803 A.2d 753, 766 (Pa.
Super. 2002).


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J-A04025-17


non-suit at trial.” Youst v. Keck's Food Serv., Inc., 94 A.3d 1057, 1071

(Pa. Super. 2014) (brackets omitted). A motion for a directed verdict is

appropriate even in non-jury cases. See Nikole, Inc. v. Klinger, 603 A.2d

587, 593 (Pa. Super. 1992), appeal denied, 603 A.2d 587 (Pa. 1993).

     Here, Pujols made no motion to the trial court for a directed verdict.

She therefore failed to preserve her right to seek judgment notwithstanding

the verdict, and we are unable to review the trial court’s denial of that

request. Youst, 94 A.3d at 1071.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2017




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