from the Judgment Entered February 5, 2016 In the Court of
Common Pleas of Berks County Civil Division at No(s): 08-4706
BEFORE: BOWES, OLSON AND STABILE, JJ.
matter comes before this panel following a prior decision
vacating a judgment and remanding to the trial court for its
application of the proper legal standard to determine whether
to award attorney fees pursuant to § 962(c.2) of the
Pennsylvania Human Relations Act (the "PHRA"), 43
P.S. § 951 et seq.. See Huyett v.
Doug's Family Pharm., 122 A.3d 1136 (Pa.Super. 2015)
(unpublished memorandum). Valerie Huyett, the prevailing
party below, renews her challenge to the trial court's
denial of attorney fees. After careful review, we affirm.
glean the relevant facts from our review of the record.
Valerie Huyett, a 38-year-old married mother of two young
children, worked for eleven years at Doug's Family
Pharmacy as a pharmacy technician. She received pay raises
annually. Douglas Hess was the owner/operator of the
Pharmacy, and his wife, Lisa Hess, assisted him in running
August 24, 2006, Ms. Huyett was diagnosed with Hodgkins
lymphoma, a form of cancer. She communicated that diagnosis
to her immediate supervisor, Stephanie Mitchell, a
pharmacist. Four days later, on August 30, 2006, she received
a telephone call from Mr. Hess. According to Ms. Huyett, Mr.
Hess told her that he was terminating her employment because
he could not deal with the scheduling issues related to her
treatments. He subsequently proposed that she sign a formal
resignation, and in return he would not contest her
collection of unemployment compensation benefits, he would
pay her for three weeks of vacation, an additional one
week's pay, and two sick days. N.T. Trial, 10/10/12, at
225. When she refused to sign the resignation, he opposed her
receipt of unemployment compensation benefits. Nonetheless,
she was awarded unemployment.
Mitchell provided critical evidence on Ms. Huyett's
behalf. She testified that she started at Doug's Family
Pharmacy in September 2005 as a part-time pharmacist, and was
a full-time employee from January 2006 to May 2007. She was
impressed with Ms. Huyett and described her as "one of
the best technicians that I ever worked with." N.T.,
10/11/12, at 474.
Mitchell verified that, prior to receiving the cancer
diagnosis, Ms. Huyett had complained of frequent sore throats
and she had a visible, palpable lump on her throat. Ms.
Mitchell and Mrs. Hess had actually touched the lump. On one
occasion prior to August 2006, Ms. Mitchell recalled that Ms.
Huyett left work to go to an urgent care center as she was
having trouble swallowing. According to Ms. Mitchell, both
Mr. and Mrs. Hess were aware that Ms. Huyett was scheduled to
undergo a biopsy and she personally discussed with them the
possibility that Ms. Huyett had cancer.
Huyett telephoned Ms. Mitchell on August 24, 2006, and
informed her that she had Hodgkins lymphoma. Ms. Mitchell
told her she did not have to come to work that day, but Ms.
Huyett insisted on working. Id. at 485. Ms. Huyett
did not come to work on August 30, 2006, however, because she
had been fired the night before. Ms. Mitchell mentioned to
Mr. Hess that day that she could not believe that Ms. Huyett
no longer worked there and that she had been diagnosed with
cancer. Id. at 493. Mr. Hess responded that her
termination was best, both for him and for Ms. Huyett, as
"she could go out and collect unemployment. She
doesn't have to worry about showing up for work, she
could be at home going through her treatments, she could
collect her unemployment check and he doesn't have to
worry about getting coverage for work because of -- when she
is calling out sick with her treatments." Id.
He called it a "win/win situation." Id.
When Ms. Huyett recovered, Mr. Hess would "hire her
back." Id. Mr. Hess did not disparage Ms.
Huyett or her work performance.
Mitchell testified that approximately one month after Ms.
Huyatt's termination, she observed Mrs. Hess walking
around with a clipboard making a list of mistakes Ms. Huyett
had made. Mrs. Hess questioned Ms. Mitchell and the other
employees about what they had observed and noted their
Hess justified the firing based on Ms. Huyett's declining
work performance. He told the jury that, for the first nine
years of her employment, Ms. Huyett was an excellent
employee. During the final two years, however, her
performance declined. She wore inappropriate attire to work
and was habitually late. He also provided examples of
mistakes made by Ms. Huyett and instances where she gave
inappropriate advice to customers. Some of these incidents
were confirmed by Mrs. Hess and by Emily O'Neill, an
employee who worked at the Pharmacy during the relevant
period. Ms. Huyett disagreed with their accounts of her work
trial, Ms. Mitchell disputed that Ms. Huyett arrived to work
late on the day of her diagnosis, or that she was tardy and
appeared hung over on August 28, 2006. She was confronted on
cross-examination with an email that purported to be from her
account and that was critical of Ms. Huyett's
performance. Ms. Mitchell denied that she authored the entire
email and she posited that someone else had added the
paragraphs that disparaged Ms. Huyett. Ms. Mitchell
subsequently left her employment at Doug's Pharmacy and
started working full-time at CVS.
Ms. Huyett's contention that she was fired due to her
disability and she claimed an economic loss of $18, 894.92.
At trial, Ms. Huyett presented her treating oncologist,
Daniel L. Foreman, M.D., who opined that, she "suffered
physical and mental impairment affecting one or more of her
major life activities as a result of her diagnosis and
treatment." N.T., 10/9/12, at 58. However, her treatment
did not affect her ability to work as a pharmacy technician.
Id. at 59. She was capable of performing those
duties "without assistance, adjustment, or
accommodation." Id. at 60. The administration
of her chemotherapy could be arranged to accommodate her work
support of his position that Ms. Huyett's termination was
motivated by her inadequate work performance rather than
discrimination, Mr. Hess also offered the testimony of his
attorney, J. Kitridge Fegley. The attorney confirmed that Mr.
and Mrs. Hess mentioned to him in early August 2006 that they
intended to terminate an eleven-year employee when they
returned from their vacation. After Ms. Huyett was diagnosed
with cancer just weeks later, they sought his legal advice
about terminating Ms. Huyett in light of the diagnosis.
jury returned a verdict in favor of Ms. Huyett and against
Doug's Family Pharmacy. It awarded damages for economic
loss in the full amount sought and $2, 500.00 in non-economic
damages. As the prevailing plaintiff, Ms. Huyett petitioned
for attorney fees totaling $106, 429.30 pursuant to §
962(c.2) of the PHRA. The trial court denied attorney fees
because it did not believe the jury's verdict was
supported by the evidence as it "did not and does not
find the testimony of Stephanie Mitchell to be
credible." Order, 1/17/14, at 1-2. Doug's Family
Pharmacy filed a motion for post-trial relief arguing that
the jury's verdict was not supported by the evidence. The
motion was denied.
Huyett appealed to this Court and alleged, inter
alia, that the trial court exceeded the permissible
scope of its discretion and usurped the jury's
credibility determinations when it did not find Stephanie
Mitchell's testimony credible. This Court found that the
trial court misapplied the law, vacated the order, and
remanded for the trial court to apply the proper legal
standard in determining whether Ms. Huyett was entitled to
attorney fees. The trial court was directed to weigh the
evidence in accord with our Supreme Court's decision in
Hoy v. Angelone, 720 A.2d 745 (Pa. 1998). Doug's
Family Pharmacy's petition for allowance of appeal to the
Supreme Court was denied. See Huyett v. Doug's Family
Pharm., 129 A.3d 1243 (Pa. 2015) (unpublished decision).
remand, the trial court weighed the evidence presented at
trial to determine whether Doug's Family Pharmacy had
engaged in an unlawful discriminatory practice in violation
of the PHRA. It concluded that the evidence was
"weak" and did not support a finding of a