              IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


SUZANNE WILGUS,                             :
                                            :
                        Plaintiff,          :         K17C-07-032 JJC
                                            :         In and for Kent County
                        v.                  :
                                            :
BAYHEALTH MEDICAL                           :
CENTER, INC.,                               :
                                            :
                        Defendant.          :


                                         ORDER

                                Submitted: December 4, 2018
                                Decided: December 17, 2018


         AND NOW TO WIT, this 17th day of December, 2018, upon consideration
of the record and the briefing by the parties, IT APPEARS THAT:
         1.      In August 2018, Plaintiff Suzanne Wilgus (hereinafter “Ms. Wilgus”)
tried an employment discrimination case against Defendant Bayhealth Medical
Center, Inc. (hereinafter “Bayhealth”) before a jury. Ms. Wilgus claimed Bayhealth
violated Delaware’s Persons With Disabilities Employment Protections Act
(hereinafter “DEPA”)1 because Bayhealth terminated her after refusing to provide a
reasonable accommodation based on her record of a disability. The jury found that
Bayhealth violated DEPA and awarded Ms. Wilgus $196,285.28 in compensatory
damages and $100,000 in punitive damages. Bayhealth now files a motion renewing
its motion for judgment as a matter of law made at the close of Ms. Wilgus’s case-


1
    19 Del. C. § 720 et seq.
in-chief. In the alternative, Bayhealth seeks a new trial pursuant to Superior Court
Civil Rule 59. The Court recognizes the standards for both motions and will apply
them.
        2.     The parties stipulated prior to trial that federal law, namely the
American with Disabilities Act as Amended (hereinafter the “ADA”), 2 provides the
legal standards that control this DEPA claim. 3 DEPA parallels the ADA and also
incorporates changes to the ADA by recognizing that any “higher or more
comprehensive obligations established by otherwise applicable federal . . .
enactments may be considered.”4
        3.     In large part, Bayhealth’s legal arguments have been addressed (1) in
the Court’s written summary judgment decision issued prior to trial and (2) in the
Court’s oral rulings during trial. Bayhealth raises five issues in the current motion
that the Court will address through references to its prior rulings where appropriate.
        4.     First, Bayhealth argues, as a matter of law and of evidentiary
sufficiency, that Ms. Wilgus did not suffer a disability as defined by DEPA.
Bayhealth cites two federal cases for the premise that “a temporary, non-chronic
impairment of short duration is not a disability covered under the ADA.” 5 In this
regard, this and other case law cited by Bayhealth either preexisted relevant

2
  42 U.S.C. § 12101 et seq (2009).
3
  See Testerman v. Chrysler, 1999 WL 820934, at *11 (D. Del. Dec. 30, 1997) (recognizing this
for the purposes of evaluating state law claims of disability discrimination under 19 Del. C. § 720,
courts have utilized the same legal standards and framework established by the federal courts for
actions under the ADA); see also Wilgus v. Bayhealth, 2018 WL 3559258, at *2 (Del. Super. Jul
23, 2018) (describing DEPA’s incorporation of the ADA’s standards for interpreting DEPA).
4
  19 Del. C. § 721(b).
5
  See McFarlan v. Ivy Hill, 675 F.3d 266, 274 (3d. Cir. 2002) (plaintiff’s temporary lifting
restrictions which were removed four months after imposed was a temporary non-chronic
impairment), and Koller v. Riley, 850 F. Supp. 2d 502, 513 (E.D. Pa. 2012) (certain impairments
that are not covered under the ADA include “cancer, HIV-AIDS, epilepsy, diabetes, multiple
sclerosis, amputated and partially amputated limbs, post-traumatic stress disorder, intellectual and
developmental disabilities-not minor, transitory impairments, except if of such a severe nature that
one could not avoid considering them”).
                                                 2
amendments to the ADA that became effective in 2009, or were limited to claims
made under the actual impairment prong of the definition of disability.
       5.     DEPA defines a “person with a disability” to include a person who (1)
has a physical or mental impairment which substantially limits one or more major
life activities; (2) has a record of such impairment; or (3) is regarded as having such
an impairment. 6 The “record of disability” prong of the definition of disability was
at issue in this case.7 At trial, the Court cited the evidence of record and its reasoning
for denying Bayhealth’s motion for judgment as a matter of law. 8 The evidence
presented at trial was sufficient to support a reasonable jury’s finding that Ms.
Wilgus had a record of disability. This evidence included her approximately 180
days of missed work, significant back surgery, two notes from her treating doctor
placing her on “total disability,” recognition of her significant impairment in her
disability insurance documentation, and her testimony regarding her injuries’ severe
impact on several major life activities. Contrary to Bayhealth’s argument, this
evidence was admissible and properly considered by the fact finder.
       6.     Second, Bayhealth challenges the sufficiency of the evidence for the
jury to have awarded punitive damages. After considering the parties’ arguments at
the prayer conference, the Court recited the evidence of record it found sufficient to
justify a reasonable jury’s finding that Bayhealth recklessly disregarded the rights
guaranteed by DEPA. 9         Bayhealth’s primary post-trial argument relies on the
testimony of its employees that professed their lack of ill will or reckless disregard
for Ms. Wilgus’s rights when Bayhealth terminated her rather than (1) accommodate

6
  19 Del. C. § 722(4).
7
  See Wilgus, 2018 WL 3559258, at *3 (discussing the differences in the three prongs and the
standards for claims involving a “record of disability”).
8
  See Trial Tr. Vol. C, 78-84, Aug. 29, 2018 (explaining that whether or not Ms. Wilgus’s six-
month impairment was sufficiently severe to constitute a disability under DEPA was an issue for
the jury to decide).
9
  Prayer Conference Tr., 93-112, Aug. 30, 2018.
                                              3
her request to use a back-brace, or (2) at a minimum engage in an interactive process
with her. In other words, they testified regarding Bayhealth’s subjective state of
mind. The Court regularly instructs juries that they are free to infer a party’s mental
state based upon the circumstances.             Here, after proper instruction, the jury’s
assessment of punitive damages was supported by a significant quantum of evidence
suggesting Bayhealth terminated Ms. Wilgus without engaging in any interactive
process or providing her with a very modest and reasonable accommodation. The
evidence sufficiently supported a finding that Bayhealth (1) knew its obligations in
this case, and (2) consciously disregarded those obligations to an extent rising to the
level of recklessness.
       7.      Furthermore, the Court properly instructed the jury on the law regarding
punitive damages. DEPA provides for potential recovery of punitive damages, 10
subject to the requirements of Title VII of the Civil Rights Act of 1964, including its
cap on punitive damages.11 The Court instructed the jury using the Third Circuit
Court of Appeal’s pattern jury instructions, which consistent with the ADA and
DEPA, provide for punitive damages for conduct involving either malice or reckless
indifference.12 There was sufficient evidence at trial to support a reasonable jury’s
finding that Bayhealth acted with reckless indifference to Ms. Wilgus’s rights under
DEPA. In this motion, Bayhealth offers no new argument convincing the Court that
it misapprehended the law or the facts. Finally, notwithstanding the Court’s ruling


10
   19 Del. C. § 715(1)c.; See also 19 Del.C. § 727 (providing that remedies for a violation of DEPA
are available as permitted under Subchapter II of Chapter 7 of Title 19, Delaware Code wherein
private causes of action are provided for in 19 Del. C. §715 ).
11
   42 U.S.C. § 1981a.
12
    See Third Cir. Pattern Jury Instructions for Employment Claims under the ADA 9.4.2
(recognizing that where a plaintiff claims a defendant’s acts were done with malice or reckless
indifference to plaintiff’s rights under the ADA, a jury may award punitive damages), see also
Kolstad v. American Dental Ass’n, 527 U.S. 526, 536 (1999) (recognizing that to be liable in
punitive damages under the ADA, the “employer must discriminate in the face of a perceived risk
that actions will violate federal law”).
                                                4
that the evidence at trial was sufficient to support a finding of reckless disregard,
Bayhealth specifically requested that the malice alternative in the pattern instruction
be retained in the instruction.13 Bayhealth cannot assert prejudice because the
reference to malice was left in the jury instruction solely at its request.
       8.      Third, Bayhealth argues that the Court improperly instructed the jury
regarding whether work was a major life activity and that a new trial is therefore
warranted.     Bayhealth’s argument is without merit.              Nothing in the ADA, as
amended in 2009, requires a plaintiff to prove that he or she cannot perform a broad
range of jobs in order for there to be a substantial impairment of the major life
activity of work. In recognition of the amendments to the ADA, the Third Circuit
Court of Appeals’ pattern jury instructions do not include such language.14 In any
event, Bayhealth requested language referencing a broad range of jobs as opposed
to Ms. Wilgus’s actual job. Without objection by Ms. Wilgus, the Court included
the language in the instruction that Bayhealth complains was not. Furthermore, at
Bayhealth’s request, the instructions identified the range of jobs as that of “registered
nurse,” as opposed to Ms. Wilgus’s specific job position - a neonatal intensive care
nurse. The Court again defaulted to the Third Circuit pattern instruction for ADA
claims with the adjustments requested by Bayhealth.15




13
   Bayhealth objected to the punitive damages instruction. When the Court overruled the objection,
Bayhealth requested that a reference to malice be retained in the instruction.
14
   See 3d. Cir. Pattern Jury Instructions for Employment Claims under the ADA, 9.2.1 (recognizing
that the “ADA Amendments Act of 2008 specifically lists ‘working’ as a major life activity, and
imposes no special showing on ‘working’ as distinct from other life activities. Nothing in the Act
requires the plaintiff to prove an inability to perform a broad range of jobs, as had been required
[before the Amendment] . . . Accordingly, the Instruction contains no special provision or
limitation on proof of working as a major life activity”).
15
   3d Cir. Pattern Jury Instructions for Employment Claims under the ADA, 9.2.1.
                                                5
        9.     Fourth, Bayhealth argues that a “special circumstance” instruction16
was appropriate because Bayhealth had a policy that provided it handle requests for
reasonable accommodations in compliance with the ADA. In other words, its policy
was to follow the law. Bayhealth introduced the policy into evidence and argued its
importance to the jury. That policy, however, was not a disability neutral policy as
such is contemplated under the ADA. 17 The Court reviewed the cases cited by
Bayhealth, heard arguments, and issued an oral decision during the prayer
conference.18 Those reasons for not including a “special circumstance” instruction
remain correct.
        10.    Fifth, Bayhealth raised for the first time in its Reply Brief an argument
that the evidence established conclusively that Ms. Wilgus could not perform the
essential functions of her employment while using the back-brace. This argument
ignores the substantial evidence that supported the jury’s findings to the contrary.
Namely, the uncontroverted evidence at trial established that she could perform all
“physical demand functions” listed in her job description. Her only established
limitation at the time of her planned return was that she was restricted in squatting.
The evidence sufficiently established that squatting was not a required physical
function of her job. Moreover, Bayhealth’s argument that wearing a very modestly
sized back-brace, that was admitted into evidence for the jury to view, posed a
sanitary risk. The jury was free to consider that the modestly sized back-brace would
have fit under Ms. Wilgus’s scrubs or other clothing and would not have caused such
risks. Judgment as a matter of law or a new trial are not appropriate on this basis as
well.

16
    See Third Cir. Pattern Jury Instructions for Employment Claims under the ADA, § 9.1.3
(discussing a “special circumstance” instruction in the context of seniority plans, which in contrast
to the policy at issue in this case, are disability neutral policies).
17
   Prayer Conference Tr., 70-80, Aug. 30, 2018.
18
   Id.
                                                 6
      NOW THEREFORE, for the reasons cited, Defendant Bayhealth’s motion
for judgment as a matter of law, or in the alternative for a new trial is DENIED.
      IT IS SO ORDERED.

                                                    /s/Jeffrey J Clark
                                                          Judge




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