Labor & Employment Law Daily Construction employee who claimed he was fired in retaliation for safety complaints about drunk supervisor retains damages award
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Tuesday, September 29, 2020

Construction employee who claimed he was fired in retaliation for safety complaints about drunk supervisor retains damages award

By Georgia D. Koutouzos, J.D.

The trial court should not have required the employee to choose between punitive damages and attorney fees under the state anti-retaliation law, however.

An employee who lost his job after having made several complaints regarding his supervisor’s alcohol consumption was appropriately awarded compensatory damages under North Carolina’s Retaliatory Employment Discrimination Act (REDA), the Fourth Circuit held in an unpublished decision. Contrary to the employer’s contention, the appeals court concluded that the evidence supported a finding that the employee had been fired and that the jury’s award of punitive damages for the employee’s wrongful-discharge claim was supported by the record. Thus, the trial court’s decision was affirmed except to the extent that it made the employee choose between punitive damages and attorney fees under REDA. Because recovery of attorney fees under REDA requires proof different from that which gives rise to punitive damages and the awards don’t arise from the same course of conduct, the employee could collect both, the appeals court held (Driskell v. Summit Contracting Group, Inc., September 24, 2020, Diaz, A).

Initial concerns about supervisor’s drinking. An individual was hired as an Assistant Superintendent at a general contractor that manages construction projects and was assigned to a project in Charlotte, North Carolina. The employee reported to a Superintendent who, in turn, reported to the Project Manager. During the ensuing months, the employee noticed that the Superintendent frequently drank alcohol at lunch and returned to work intoxicated, occasionally acting belligerently. The employee reported the Superintendent’s drinking to the Project Manager several times, including his concern that it was a safety issue. The Project Manager relayed the employee’s complaint to the company’s president and chief executive officer.

Argument with supervisor. One night after work, the employee ran into the Superintendent in the parking lot of the hotel where several of the company’s employees were staying during the construction project. The Superintendent was drunk and the two argued about a workplace safety issue, at which point the Superintendent told the employee to pack his things and leave the job site. The employee then spoke to the CEO on the telephone, who told him to ignore what the Superintendent had said about leaving and that a senior employee would be sent out to investigate the employee’s complaints.

Physical melee with supervisor. About one week later, the employee again met up with the Superintendent in the hotel parking lot. The Superintendent appeared to be drunk but insisted that he and the employee have a beer together. The Superintendent told the employee that he was removing some workers from the employee’s team and that the team would need to increase its production despite having fewer members. The employee told the Superintendent that pushing his team any harder would create safety issues. The two argued and apparently cursed one another. As the employee turned away to leave, the Superintendent followed him and punched him in the face repeatedly. The employee didn’t return the punches; instead, he wrestled with the Superintendent and put him in a headlock. During the melee, the Superintendent told the employee that he was fired.

The employee again called the company CEO, who told him that he was not fired. The employee told the CEO that he would quit if the Superintendent remained at the company, but the CEO did not respond to that statement. Later that night, the employee met with the Project Manager, who asked him to return his work tools.

Lack of response by employer. The employee visited the emergency room for his injuries and, after he was cleared to return to work a few days later, contacted the Project Manager about where he should report. The Project Manager never answered, and the employee’s company-issued cell phone and iPad were deactivated. The next afternoon, the employee turned in those devices on the presumption that he had been fired, although no one (other than his drunken supervisor) ever had told him that.

Retaliatory termination lawsuit. The employee filed suit against the company alleging retaliatory termination in violation of North Carolina’s Retaliatory Employment Discrimination Act (REDA) and wrongful discharge in violation of North Carolina common law. He alleged two theories for why he had been fired: (1) because of his complaints about the Superintendent’s drinking and their fight; and (2) because the employer believed that he would file a workers’ compensation claim due to his injuries from his fight with the Superintendent.

Jury award. A jury trial ensued, and the jury found that the employer violated REDA and North Carolina common law in firing the employee (the jury didn’t specify which of the employee’s two theories of retaliation it accepted). The employee was awarded $65,000 in compensatory damages and $681,000 in punitive damages on the wrongful-discharge claim.

Post-trial rulings. Thereafter, the trial court denied the employer’s motions for judgment as a matter of law and for a new trial. The court also denied the employee’s motion to amend the judgment without addressing his request that his compensatory award be increased to reflect additional lost back pay. Later, the court held that the employee had to choose between a $250,000 punitive damages award (per North Carolina law) for the wrongful-discharge claim and attorney fees under REDA. The employee chose to forego punitive damages, collecting $195,000 in trebled compensatory damages (REDA mandates treble damages if an employer’s violation was willful) and $441,600 in attorney fees.

Arguments on appeal. The employer appealed, arguing that it was entitled to judgment as a matter of law or a new trial, and that the jury’s punitive-damages award wasn’t supported by the evidence. The employee cross-appealed, contending that the trial court erred by not increasing the jury’s compensatory damages award to reflect the full amount of back pay that he was owed and by requiring him to elect between punitive damages and attorney fees.

Termination. The employer insisted that it was entitled to summary judgment as a matter of law because it never had fired the employee but, rather, he had quit. However, the appeals court concluded that the evidence supported a finding that the company had fired the employee—it had deactivated his work-issued devices, neither the Project Manager nor the CEO had responded to the employee’s inquiries about where to report for work, and the Project Manager had asked the employee to return his work tools. A reasonable person in the employee’s position would have understood that he had been terminated, the appeals court said, adding that at no point had he quit his job.

Internal complaints. As for the employer’s contention that it was entitled to judgment as a matter of law because REDA doesn’t protect internal complaints to one’s own employer, the appeals court said that whether the statute protects the employee’s complaints was a question of law. In assessing whether a particular complaint is protected, the court needed to consider whether it related or led to an investigation, whether it had been made to someone other than the plaintiff’s supervisors or managers, and whether workplace safety was a primary focus of the complaint. In that regard, the appellate panel agreed with the trial court that, while REDA doesn’t protect every internal complaint about workplace safety, it did protect the employee’s complaints to the company’s CEO in the case at bar.

Workers’ compensation claim. The company also assailed the trial court’s jury instruction that “[i]t is against the law for an employer to terminate an employee because the employer believes the employee will file a workers’ compensation claim against the employer.” In the employer’s view, REDA’s text requires an employee to actually file or “threaten[] to” file a workers’ compensation claim. Because the employee never explicitly threatened to file a claim, his second theory of retaliation shouldn’t have been submitted to the jury, the employer maintained. The appeals court concluded that the jury instruction was correct, however, because no explicit threat by the plaintiff was required. REDA must be interpreted to prevent an employer from firing an individual because it anticipates (or believes) that he or she will file a workers’ compensation claim.

Punitive damages. Finally, the appeals court disagreed with the employer’s assertion that the jury’s award of punitive damages for the employee’s wrongful-discharge claim wasn’t supported by the record. A reasonable jury could be fully convinced that, in firing the employee, company executives had acted with malice toward him or with a conscious disregard for his right to engage in activity protected by REDA, the appellate panel remarked.

Employee’s contentions. Although the employee argued that the trial court erred by failing to amend the jury’s $65,000 compensatory damages award to reflect the full amount of back pay he was owed, he failed to preserve that issue in the district court, thereby forfeiting appellate review. That said, the appeals court agreed with the employee’s position that he should not have been required to choose between the punitive-damages verdict (which arose from his wrongful-discharge claim) and the award of attorney fees (which arose from his REDA claim). Because recovery of attorney fees under REDA requires proof different from that which gives rise to punitive damages and the awards don’t arise from the same course of conduct, the employee could collect both. The district court erred in holding otherwise. Accordingly, the trial court’s opinion was affirmed in all respects except for the portion of the order requiring the employee to choose between punitive damages and attorney fees.

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