1998 -NMCA- 21, Weidler v. Big J Enterprises, Inc.

• Decision Date: 15 December 1997
• Docket Number: No. 16712,16712
• Citation: 124 N.M. 591,953 P.2d 1089,1998 NMCA 21
• Parties: , 66 USLW 31,559, 1998 -NMCA- 21 Mark E. WEIDLER, in his official capacity as Secretary of the New Mexico Environment Department, Respondent-Appellee, v. BIG J ENTERPRISES, INC., Petitioner-Appellant, and Matthew B. KEHOE, Plaintiff-Appellee/Cross-Appellant, v. BIG J ENTERPRISES, INC., Defendant-Appellant/Cross-Appellee.
• Court: Court of Appeals of New Mexico

Page 1089

953 P.2d 1089

124 N.M. 591, 66 USLW 31,559, 1998 -NMCA- 21

Mark E. WEIDLER, in his official capacity as Secretary of

the New Mexico Environment Department, Respondent-Appellee, v. BIG J ENTERPRISES, INC., Petitioner-Appellant, and Matthew B. KEHOE, Plaintiff-Appellee/Cross-Appellant, v. BIG J ENTERPRISES, INC., Defendant-Appellant/Cross-Appellee.

No. 16712.

Court of Appeals of New Mexico.

Dec. 15, 1997.

[124 N.M. 594] Tom Udall, Attorney General, Geoffrey Sloan, Special Assistant Attorney General, New Mexico Environment Department, Santa Fe, for Respondent-Appellee.

Eric Scott Jeffries, Ripley B. Harwood, Jeffries & Rugge, P.C., Albuquerque, for Plaintiff-Appellee/Cross-Appellant.

Michael E. Vigil, William C. Marchiondo, Marchiondo, Vigil & Associates, P.C., Albuquerque, for Defendant-Appellant/Cross-Appellee.

OPINION

ALARID, Judge.

¶1 Big J Enterprises (Big J) appeals a jury verdict, including punitive damages, for Matthew Kehoe (Kehoe) based on a claim of retaliatory discharge. Kehoe cross-appeals the trial court's ruling regarding prejudgment interest. We affirm the verdict and the award of prejudgment interest on the compensatory damages portion of the award.

FACTS

¶2 Big J is a construction company owned by Gary Johnson and his wife, Dee. One of its largest customers is the Intel Corporation plant in Rio Rancho. In 1991, Big J employed approximately four hundred people, many of whom worked at the Intel site on various projects. The number of employees at the site would vary depending on the labor needs for the particular projects. In particular, the number of workers would fluctuate greatly during a shutdown. A "shutdown" refers to the time when the plant is not operational. It was during that time that maintenance and refurbishment of the plant's fabrication rooms would take place. As a result, Big J would add more employees to accommodate the increased workload. After every shutdown, once most of the work was done, there would be a layoff by Big J. The leads or foremen of a particular crew would be responsible for recommending who should be laid off. However, management had the only authority to effect the layoffs. The Big J management team who could authorize layoffs at the Intel site included Jim Dorough, head of Fab 9; Rod Camplaign, head of Fab 7; and Jerry Hess, supervisor at Intel.

¶3 Kehoe began working for Big J at the Intel site in February 1991 as a licensed mechanical journeyman. He worked on a variety of projects involving ceilings and floors, sheet metal and fiberglass work. From February 1991 until October 1991, he reported to three different people, working on whatever project needed to be done. In October 1991, he was assigned to work under the supervision of Ray Saiz. It was while he was working under the supervision of Saiz that several incidents occurred involving Kehoe and what might be termed "safety concerns."

¶4 On December 13, 1991, during demolition and removal of duct work, in two separate incidents, several drops of sulfuric acid solution came in contact with Kehoe. Kehoe was wearing standard safety gear and no injury was reportedly suffered. However, Kehoe was required to replace the pair of work boots he was wearing because of contamination. Later that day, Saiz commented to others referring to the incidents as Kehoe getting "his first golden shower." Testimony classified the remarks as pornographic, connoting that Kehoe had been urinated on.

¶5 These remarks were repeated to Kehoe, who became upset and expressed concern about the nonchalant handling of the incidents. Kehoe talked to other workers that day about the incidents and his concerns. Over the weekend, Kehoe decided that he would bring up the jokes and the casual handling of the acid pipe on Monday, at the weekly safety meeting. In fact, Kehoe never spoke at the meeting. He testified that Saiz pulled him out of the meeting before he could do so and told him, for the first time, that his job was not secure. Kehoe accused Saiz of threatening his job because of the acid incidents. Saiz vehemently denied doing any such thing. During his testimony, Saiz denied that he called Kehoe out of the safety meeting. Saiz did acknowledge that he had heard from others that Kehoe was upset about the acid incidents. In fact, Kehoe's roommate testified that he told Saiz that Kehoe was going to report him to OSHA. Saiz denied that he had been told Kehoe was going to call OSHA; he testified that he recalled Kehoe was going to the union.

¶6 There was testimony that Saiz's attitude toward Kehoe changed after the acid spills and that the quality of work assigned to Kehoe was different. Kehoe testified that after the acid spills, Saiz assigned him to sorting nuts and bolts in the shop. This job was characterized as menial work for a journeyman. Kehoe apparently believed at that point that he was going to be laid off. Saiz testified that after the acid incidents, Kehoe's attitude and productivity declined. He testified that certain projects assigned to Kehoe had to be redone or were not completed in a timely manner. On December 30, 1991, Kehoe was punished for taking a break without getting permission from Saiz, although another member of the same crew was not punished. Kehoe was told to take the rest of the week off.

¶7 On December 31, 1991, Kehoe called OSHA and reported his concern about unsafe handling of sulfuric acid. That same day, Kehoe also called the Big J corporate office and spoke to the personnel manager. He claimed that he mentioned vaguely the problems he was having and wanted to know what the grievance procedure was. He testified that he never followed through because he was afraid of being fired.

¶8 During the December shutdown, Saiz had been notified by Dorough that he had to reduce his crew. Saiz testified that he compared the journeymen on his crew and decided that Kehoe was the least productive and would be the one to go. In a statement made to the OSHA investigator, Saiz admitted that he knew Kehoe was "in pursuit of this" at the time he decided to fire him. The investigator concluded that Saiz knew Kehoe was going to contact OSHA before he decided to terminate him. Saiz notified Dorough of his recommendation approximately one week before Kehoe was laid off. Dorough approved the termination and the reasons advanced by Saiz for selecting Kehoe. On January 20, 1992, Kehoe was notified by Saiz that he was laid off. A termination form was faxed from Intel to the Big J office.

¶9 Kehoe met with Gary Johnson a few days later to express his concerns about the acid incidents and about his discharge. Johnson told Kehoe that it was a temporary layoff, that he appeared highly qualified and, thus, would be eligible for rehire. Sometime after the termination, however, a notation appeared on Kehoe's employee record stating "not eligible for rehire, see Gary." This notation was apparently made several weeks after Kehoe's discharge when it came to Johnson's attention that Kehoe had filed a workers' compensation claim against Big J.

¶10 At their meeting, Johnson told Kehoe that he would look into the acid incidents. In doing so, Johnson talked to Saiz and Hess, but to none of the workers who were present during the incidents. Johnson accepted Hess's evaluation that the incidents were a "piece of crap" and questioned whether they had even happened.

¶11 On January 27, 1992, Kehoe called OSHA again and complained that he had been laid off for raising safety concerns. Gary Ortiz, an OSHA investigator, met with Johnson that afternoon. Ortiz testified that Johnson told him that Kehoe had been laid off because he was the least qualified. However, in a letter written to OSHA by Johnson on February 10, 1992, he stated that Kehoe was laid off because he was the least productive. The letter further stated that no one was being hired to replace Kehoe. Nevertheless, three days before this letter was written, Big J had placed an ad soliciting mechanical journeymen. Within three weeks of Kehoe's termination, Big J had hired three new journeymen sheetmetal workers for Saiz's crew.

¶12 In July 1992, the Secretary of the Environment Department (the Department) filed a petition in district court claiming that Big J had violated NMSA 1978, § 50-9-25(A)(1993), by terminating Kehoe for raising safety concerns. The Department sought compensation and injunctive relief. In May 1993, Kehoe filed a complaint in the Bernalillo County District Court for wrongful termination, claiming retaliatory discharge for raising safety concerns. Big J denied all allegations. The two cases were consolidated in June 1993.

¶13 After a three-week trial, the jury returned a verdict against Big J, finding retaliatory discharge and awarding Kehoe damages, including punitive damages of $500,000. The trial court awarded injunctive relief on behalf of the Department. The trial court entered judgment, which included prejudgment interest only on the compensatory damages from the date Kehoe's complaint was served on Big J. Big J's motion for judgment notwithstanding the verdict or for a new trial was denied. Big J appealed the verdict. Kehoe cross-appealed the refusal to award prejudgment interest on the punitive damages award.

JURY INSTRUCTIONS

¶14 Big J raises four issues relating to instructions given to the jury. The first concerns the general instruction, which explains the nature of the case and defenses and sets forth the elements of the claims. The second goes to the standard of knowledge required by the employer as it relates to the causal connection between the knowledge of protected activity and the discharge. The third concerns the trial court's failure to give Big J's requested instruction regarding Kehoe being an at-will employee. The fourth concerns the failure to give Big J's requested instruction defining the term "ratified." "When reviewing jury instructions given by the trial court, this Court must read and consider the...