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Driskell v. Summit Contracting Group, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

June 28, 2018

JUSTIN DRISKELL, Plaintiff,
v.
SUMMIT CONTRACTING GROUP, INC., Defendant.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS 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.[1] The Court addresses each motion but not necessarily in the order filed.

         I. BACKGROUND

         In the 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.

         The 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.

         II. ANALYSIS

         A. Defendant's Renewed Motion for Judgement as a Matter of Law

         1. Legal Standard

         A 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).

         2. REDA Claim

         REDA 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.” Id.

         Defendant 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.

         Defendant 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 burden.

         Defendant 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).

         As to 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.

         Here, 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 the jury.

         Third, 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 Defendant.

         Given 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.

         Fourth, 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.

         Fifth, 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).

         Defendant 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 ...


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