United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court upon Defendant's Motion to
Stay of Execution Pending Post-Trial Motions (Doc. No. 54);
Defendant's Renewed Motion for Judgement as a Matter of
Law, For a New Trial, and Motion to Order Plaintiff to Elect
Remedies (Doc. No. 61); Plaintiff's Motion for Additional
Findings and Amended Judgment (Doc. No. 64), and
Defendant's Motion to Stay of Execution by Supersedeas
Bond (Doc. No. 82). These motions are now ripe for
resolution. The Court addresses each motion but not
necessarily in the order filed.
interests of judicial economy, the Court provides a general
overview of the case here and summarizes the specific
background relevant to the issues raised by the parties'
motions in the analysis. This matter arises from the
conclusion of Justin Driskell's (“Plaintiff”)
employment with Summit Contracting Group, Inc.
(“Defendant”) in 2015 after Plaintiff's
supervisor, Daniel Rhyner, engaged in a physical altercation
with Plaintiff. Defendant is a Florida-based general
contractor focusing its business on multi-family construction
projects across the nation. Defendant employed Plaintiff as
an Assistant Superintendent from June 4, 2015, until July 24,
2015. After a five day trial, the jury returned a verdict in
Plaintiff's favor finding that Defendant terminated
Plaintiff's employment and in doing so, violated North
Carolina's Retaliatory Employment Discrimination Act
(“REDA”) and North Carolina public policy. (Doc.
No. 52, pp. 1-2). The jury found Plaintiff was entitled to
$65, 000 for the REDA claim and the wrongful discharge in
violation of public policy claim. Id. The jury also
returned a verdict in favor of Plaintiff for his battery,
negligent supervision, and retention claims and awarded him
$4, 000 for each count. Id. at 2-3.
Clerk entered judgment consistent with the jury's verdict
on February 6, 2018 (Doc. No. 53). The parties timely filed
the instant post-trial motions.
Defendant's Renewed Motion for Judgement as a Matter of
motion under Rule 50(b) “assesses whether the claim
should succeed or fail because the evidence developed at
trial was insufficient as a matter of law to sustain the
claim.” Belk, Inc. v. Meyer Corp., 679 F.3d
146, 155 (4th Cir. 2012). The moving party must have moved
under Rule 50(a) for relief on similar grounds to move after
trial under Rule 50(b). See Fed.R.Civ.P. 50;
Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5
(2008). Failure to move under Rule 50(a) and appraise the
court of the alleged insufficiency of the suit results in
waiver of that unraised insufficiency. See Varghese v.
Honeywell Int'l, Inc., 424 F.3d 411, 423 (4th Cir.
2005); Price v. City of Charlotte, N.C. , 93 F.3d
1241, 1248-49 (4th Cir. 1996); Bridgetree, Inc. v. Red F.
Marketing LLC, No. 3:10-cv-00228-FDW-DSC, 2013 WL
443698, at *17 (W.D. N.C. Feb. 5, 2013). When considering a
Rule 50 motion, the court cannot reweigh the evidence or
consider the credibility of the witness and must view
“all the evidence in the light most favorable to the
prevailing party and draw all reasonable inferences in [the
prevailing party's] favor.” Konkel v. Bob Evans
Farms, Inc., 165 F.3d 275, 279 (4th Cir. 1999). A
jury's verdict will withstand a motion under Rule 50
unless the court “determines that the only conclusion a
reasonable trier of fact could draw from the evidence is in
favor of the moving party.” Tools USA and Equip.
Co. v. Champ Frame Straightening Equip., Inc., 87 F.3d
654, 656-57 (4th Cir. 1996) (quoting Winant v.
Bostic, 5 F.3d 767, 774 (4th Cir. 1993)); see also
Konkel, 165 F.3d at 279. When ruling on a motion under
Rule 50(b), the court may allow judgment on the verdict,
order a new trial, or direct entry of judgment as a matter of
law. Fed.R.Civ.P. 50(b).
prohibits employers from taking retaliatory actions against
an employee who “in good faith does or threatens to . .
. [f]ile a claim or complaint, initiate any inquiry,
investigation, inspection, proceeding or other actions . . .
with respect to [OSHA]. N.C. G.S § 95-241(a) (2017). To
succeed on a REDA claim, a plaintiff must prove that:
“(1) he exercised his rights to engage in protected
activity . . .; (2) he suffered an adverse employment action;
and (3) a causal connection exists between the exercise of
the protected activity and the alleged retaliatory
action.” Nguyen v. Austin Quality Foods, Inc.,
974 F.Supp.2d 879, 882-83 (E.D. N.C. 2013). Once the
plaintiff can establish a prima facie showing of a REDA
violation, “the burden shifts to the defendant to show
that it would have taken the same unfavorable action in the
absence of the protected activity of the employee.”
argues Plaintiff failed to make a prima facie showing of a
REDA violation on a number of grounds: (1) Plaintiff did not
suffer an adverse employment action; (2) Plaintiff did not
engage in protected activity; (3) Plaintiff did not prove
that Defendant's explanation for the termination was
pretext; (4) there was no “but for” causation
between Plaintiff's complaint or threatened complaint and
Defendant's termination of Plaintiff; (5) Plaintiff
failed to exhaust his administrative remedies before pursing
judicial relief; and (6) the Court used the wrong standard
when instructing the jury on what constitutes protected
activity. (Doc. No. 62, pp. 4-10). Each argument will be
addressed in turn.
first argues Plaintiff did not suffer an adverse employment
action because Plaintiff admitted he resigned from his
position with Summit on a subsequent job application. (Doc.
No. 62, p. 5). The jury was specifically asked whether
Defendant terminated Plaintiff, and in Question One of the
jury verdict form, (Doc. No. 52, p. 1), found the termination
took place. Although Plaintiff admitted to indicating
resignation from Summit on an employment application,
Plaintiff testified that he lied on the job application in
hopes that he would be hired. (Doc. No. 73, p. 267).
Plaintiff also provided testimony that he intended to return
to work at Summit and only concluded he had been fired when
his supervisors did not return his texts or calls about
returning to work. Id. at 157-61. By questioning the
credibility of Plaintiff's testimony, Defendant is
essentially asking this Court to re-weigh evidence and
evaluate the facts - a task which rests solely with the jury.
This Court will not re-weigh any evidence so long as
Plaintiff has provided sufficient factual basis to allow a
reasonable jury to determine that Plaintiff suffered an
adverse employment action, and here, Plaintiff has met his
next argues Plaintiff did not engage in protected activity as
a matter of law. An employee engages in protected activity
under REDA when he “in good faith does or threatens to
. . . [f]ile a claim or complaint, initiate any inquiry,
investigation, inspection, proceeding or other action, or
testify or provide information to any person with respect
to” the Occupational Safety and Health Act of North
Carolina (“OSHA”). N.C. Gen. Stat. §
95-241(a)(1)(b) (2017). “By its plain language, it is
clear that REDA does not limit protected activities to the
sole act of filing a formal claim under [OSHA].”
Pierce v. Atl. Grp., Inc., 724 S.E.2d 568, 574 (
N.C. Ct. App. 2012) (quoting Jurrissen v. Keystone Foods,
LLC, No. 1:08CV128, 2008 WL 3925086, at *5 (M.D. N.C.
Aug. 20, 2008)). On the other hand, “merely talking to
an internal supervisor about potential safety concerns is not
a ‘protected activity' under REDA.”
Id. (quoting Jurrissen, 2008 WL 3925086, at
*5); see Delon v. McLaurin Parking Co., 367
F.Supp.2d 893, 902 (M.D. N.C. ), aff'd, 146
Fed.Appx. 655 (4th Cir. 2005) (concluding that a mere
“complaint to a manager about a supervisor” is
not protected under REDA).
this issue, the Court instructed the jury that communication
to Marc Padgett, the CEO of Summit, about a health and safety
risk is protected activity as a matter of law. As
Plaintiff's REDA claim is based on North Carolina state
law, this Court looked to Pierce v. Atlantic Group,
Inc., 724 S.E.2d 568 ( N.C. Ct. App. 2012), for
guidance. In Pierce, the North Carolina Court of
Appeals held that “merely talking to an internal
supervisor . . . is not protected activity under REDA.”
Pierce, 724 S.E.2d at 574 (citation and quotation
omitted). The court did not find any protected activity when
the plaintiff “spoke only to his supervisors about his
concerns regarding the certification of riggers.”
Id. at 575. Further, the U.S. District Court for the
Eastern District of North Carolina interpreted
Pierce to mean that an employee must do more than
“merely raise his concerns to his supervisors,
” or “inquir[e]” about his concerns.
Hadley v. Duke Energy Progress, Inc., 2016 WL
1071098 at *7 (E.D. N.C. Mar. 17, 2016). In Hadley,
the court found no protected activity when the plaintiff
“inquired with [the defendant's] human resources
department about his wages.” Id. at *8.
the Court determined Plaintiff presented sufficient evidence
under applicable law to instruct the jury that
repeatedly communicating serious health and
safety concerns to the CEO of the company was more than
“merely talking to an internal supervisor” or
“inquiring about his concerns.” Id. at
*7. The Court acknowledges Defendant's arguments about
this instruction to the extent they were raised in the charge
conference; however, Defendant has not provided any basis for
this Court to conclude its instruction unfairly prejudiced
the Defendant. The Court sees no error in its instruction to
Defendant argues the Court erred in its jury instruction
regarding pretext because Plaintiff never proved
Defendant's explanation for terminating his employment
was pretextual. As to the jury instruction, the Court based
its determination on an authority cited by
Defendant, Drummond v. Mabus, 2016 WL
4921424 (E.D. N.C. Sept. 15, 2016), during the charge
conference in support of its proffered jury instruction.
(Doc. No. 76, p. 53). The Court took its instruction directly
from the language in Drummond, a case that was
brought to the attention of the Court by Defendant itself.
(Doc. No. 76, pp. 58, 66-67); Drummond, 2016 WL
4921424 at *6. Defendant has not provided the Court with any
basis to conclude this Court's instruction, taken from
Defendant's own legal authority, unfairly prejudiced the
the Court's conclusion that its jury instruction
regarding pretext was an accurate statement of law,
Defendant's argument that Plaintiff failed to prove
pretext is simply an attempt to relitigate the evidence.
Regardless, North Carolina courts have held an employer's
negative reference to “costs” in the context of a
REDA claim can “easily be interpreted as referring to
the cost of plaintiff's worker's compensation
claim.” McDowell v. Cent. Station Original
Interiors, Inc., 712 S.E.2d 251, 255 ( N.C. Ct.
App. 2011). Plaintiff's Trial Exhibit 61 indicates
Summit's Chief Administrative Officer negatively
referenced the costs associated with OSHA accident reports.
(Doc. No. 69-15, p. 1). This, along with the other evidence
showing that Summit's senior staff complained about the
burden caused by Plaintiff's complaints of safety risks,
is sufficient for a reasonable jury to find in favor of
Plaintiff on the issue of pretext.
Defendant argues the evidence presented at trial is
insufficient to support a causal connection between
Plaintiff's complaint or threat to complain about his
safety concerns and his termination from Summit. Defendant
cites Greene v. Dialysis Clinic, Inc., 159 F.Supp.2d
228 (W.D. N.C. 2001), in support of its contention. However,
Defendant fails to acknowledge that Greene would
find a prima facie case of REDA discrimination, and thus a
causal connection, when there is temporal proximity between
the retaliatory action and the filing of or threat to file a
claim. See id. at 233-34 (citation and quotation
omitted) (finding no prima facie case of REDA discrimination
when Plaintiff's “discharge occurred over two years
after” the injury for which Plaintiff filed a claim).
Here, Plaintiff's testimony at trial indicated that only
days elapsed between his altercation with Mr. Rhyner, his
indication to Summit that he would file a police report about
the battery, his safety complaints to Mr. Padgett, and his
discharge. (Doc. No. 73, pp. 153-61). This evidence is
sufficient for a reasonable jury to conclude, because of the
temporal proximity between the events at issue, the cause of
Plaintiff's discharge was his police report and safety
complaints to Mr. Padgett.
Defendant argues Plaintiff could not have pursued a
workers' compensation theory of retaliation because
Plaintiff failed to exhaust his administrative remedies when
he failed to raise any workers' compensation related
issues in his REDA charge with the NCDOL. Defendant relies on
Lockie v. Staples Contract and Commercial, Inc.,
2015 WL 93643 (W.D. N.C., Jan 7, 2015), where this Court held
a plaintiff's “REDA-based wrongful discharge claim
must be dismissed based on [the] failure to exhaust . . .
administrative remedies.” However, Defendant failed to
acknowledge that exhaustion of administrative remedies for a
REDA claim to survive only requires “an initial filing
of a written complaint with the Commissioner of Labor
alleging the statutory violation, obtaining a right-to-sue
letter, and commencing a civil action with ninety days of the
letter's issuance.” Id. at *4. Only
“where it is undisputed that Plaintiffs have
‘never filed an administrative charge with the
Department of Labor, their REDA claim and derivate public
policy claim are barred.'” Johnson v. North
Carolina, 905 F.Supp.2d 712, 728 (W.D. N.C. 2012)
(quoting Hurth v. Bradman Lake Group Ltd., 2009 WL
2497993 at *6 (W.D. N.C. Aug. 14, 2009)); see also
Satterwhite v. Wal-Mart Stores East, L.P., 2012 WL
255347 at *3 (E.D. N.C. Jan. 26, 2012) (dismissing a REDA
claim where the Plaintiff did not file a complaint with the
NCDOL at all).
further argues Plaintiff's claim was not exhausted
because he did not allege the proper statutory violation in
his charge with the NCDOL and the letter sent to the NCDOL by
Plaintiff's attorney clarifying the statutory violations
was not sufficient based on the holding in Balas v.
Huntington Ingalls Indus., Inc., 711 F.3d 401, 408 (4th
Cir. 2013) (holding that a “private letter” to
the EEOC is not enough to formally amend an EEOC charge).
However, this Court declines to extend the holding set forth
in a case interpreting federal law to the present case, where
North Carolina state law controls. The North Carolina
legislature has indicated that a right-to-sue letter may be
requested from the NCDOL “after ninety ...