Brooks v. Stroh Brewery Co.

• Decision Date: 05 September 1989
• Docket Number: No. 8821SC899,8821SC899
• Parties: , 1989 O.S.H.D. (CCH) P 28,698 John C. BROOKS, Commissioner of Labor of the State of North Carolina, Plaintiff, v. The STROH BREWERY COMPANY, Defendant.
• Court: North Carolina Court of Appeals

Page 874

382 S.E.2d 874

95 N.C.App. 226, 1989 O.S.H.D. (CCH) P 28,698

John C. BROOKS, Commissioner of Labor of the State of North Carolina, Plaintiff, v. The STROH BREWERY COMPANY, Defendant.

No. 8821SC899.

Court of Appeals of North Carolina.

Sept. 5, 1989.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Rodney S. Maddox and Associate Atty. Gen. Robert J. Blum, Raleigh, for plaintiff.

Womble Carlyle Sandridge & Rice by Mark N. Poovey, Winston-Salem, for defendant.

SARAH ELIZABETH PARKER, Judge.

On appeal plaintiff argues that the trial court erred in granting summary judgment on any one of the three grounds asserted by defendant in that (i) plaintiff forecast evidence showing a genuine issue of material fact as to defendant's motive in discharging Nettles, (ii) Nettles' acceptance of an arbitration award did not preclude the plaintiff from bringing this action, and (iii) plaintiff is not estopped by the Employment Security Commission's findings in Nettles' proceeding for unemployment benefits. We address separately each of plaintiff's contentions.

I.

General Statute 95-130 sets forth the rights and duties of employees under the Occupational Safety and Health Act of North Carolina. The statute states, in pertinent part, the following:

No employee shall be discharged or discriminated against because such employee has filed any complaint or instituted or caused to be instituted any proceeding or inspection under or related to this Article or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Article.

G.S. 95-130(8).

The Occupational Safety and Health Act of North Carolina, G.S. 95-126 et seq., is closely patterned after the Federal Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651 et seq., and G.S. 95-130(8) is virtually identical to the federal act's provision prohibiting retaliatory discharge. See 29 U.S.C. § 660(c). The primary purpose of both the Federal and State Occupational Safety and Health Acts is to assure safe and healthful working conditions for workers. See Marshall v. Intermountain Elec. Co., Inc., 614 F.2d 260, 262 (10th Cir.1980). The primary purpose of both the federal and state provisions prohibiting retaliatory discrimination is to ensure that employees are not discouraged from reporting violations of the Act. See id.; Donovan v. R.D. Andersen Const. Co., Inc., 552 F.Supp. 249, 251, 66 A.L.R. Fed. 644, 647 (D.Kan.1982); Marshall v. Springville Poultry Farm, Inc., 445 F.Supp. 2, 3 (M.D.Pa.1977). North Carolina has received approval from the federal government to administer its own occupational safety and health program. See 29 U.S.C. § 667; 29 C.F.R. §§ 1952.150-1952.155. Realizing the significant similarities between OSHANC and the federal act, this Court has, in the past, looked for guidance to federal court decisions interpreting OSHA. See Brooks, Comr. of Labor v. Butler, 70 N.C.App. 681, 321 S.E.2d 440 (1984), disc. rev. denied and appeal dismissed, 313 N.C. 327, 329 S.E.2d 385 (1985). Since this is the first action brought by the Commissioner to enforce G.S. 95-130(8), we look to federal cases interpreting the analogous federal statute.

Summary judgment is appropriate only where the evidence presented to the court shows both a lack of genuine issue of material fact and movant's entitlement to judgment as a matter of law. Bank v. Gillespie, 291 N.C. 303, 310, 230 S.E.2d 375, 379 (1976); G.S. 1A-1, Rule 56(c). In ruling on a motion for summary judgment the court must closely scrutinize the movant's materials while it regards with indulgence the non-movant's materials. Hillman v. United States Liability Ins. Co., 59 N.C.App. 145, 148, 296 S.E.2d 302, 304-305 (1982), disc. rev. denied, 307 N.C. 468, 299 S.E.2d 221 (1983). In order to survive a motion for summary judgment, the Commissioner need only forecast evidence showing that he can make a prima facie case of retaliatory discrimination at trial. See Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981). Moreover, the non-movant need only present evidence sufficient to rebut the movant's showing of either an affirmative defense or non-existence of an essential element of the claim. Id.

As a general rule summary judgment in favor of the party bearing the burden of proof is rarely proper. Blackwell v. Massey, 69 N.C.App. 240, 243, 316 S.E.2d 350, 352 (1984). See also Valdese General Hospital, Inc. v. Burns, 79 N.C.App. 163, 164-65, 339 S.E.2d 23, 25 (1986); Almond Grading Co. v. Shaver, 74 N.C.App. 576, 578, 329 S.E.2d 417, 418 (1985). Additionally, defendant has a particularly difficult burden in establishing his right to summary judgment in a case in which plaintiff's claim is dependent upon proof that defendant acted with a particular state of mind. Burrow v. Westinghouse Electric Corp., 88 N.C.App. 347, 351, 363 S.E.2d 215, 218, disc. rev. denied, 322 N.C. 111, 367 S.E.2d 910 (1988); Valdese General Hospital, Inc v. Burns, 79 N.C.App. at 165, 339 S.E.2d at 25; Edwards v. Bank, 39 N.C.App. 261, 269, 250 S.E.2d 651, 657 (1979).

For the court to hold that defendant has violated the statutory prohibition against retaliatory discrimination, the court must find (i) that the employee/complainant engaged in protected activity, (ii) that the protected activity was a substantial causative factor in the employee's termination, and (iii) that the employer has not shown by a preponderance of the evidence that it would have treated the employee/complainant in the same manner in the absence of protected activity. See Marshall v. Commonwealth Aquarium, 469 F.Supp. 690 (D.Mass.), aff'd, 611 F.2d 1 (1st Cir.1979) (applying 29 U.S.C. § 660(c)). At trial once the plaintiff has shown that the employee's activities were protected and were a substantial factor in the employer's decision, the burden shifts to defendant to show that the same decision would have been made if the employee had not engaged in the protected activity. Marshall v. Commonwealth Aquarium, 469 F.Supp. at 692. See also Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471, 482-84 (1977) (shifting burden to defendant where protected activity implicated first amendment right to freedom of speech), quoted in Marshall v. Commonwealth Aquarium, 469 F.Supp. at 692. Accord NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (burden shifts to employer in context of retaliatory discharge for union activities under 29 U.S.C. § 158(a)(3)). But see, Dunlop v. Bechtel Power Corp., 1978 O.S.H. Dec. (CCH) p 22,711 (M.D.La.1977).

In the present case there is no question, and defendant has not contested the fact, that Nettles' 23 April 1983 complaint to his employer and Nettles' filing of the OSHANC claim on 9 May 1983 were protected activities within the scope of the legislation. G.S. 95-130; 29 U.S.C. § 660. See also, e.g., Donovan v. George Lai Contracting, Ltd., 629 F.Supp. 121 (W.D.Mo.1985) (OSHA complaint); Donovan v. Diplomat Envelope Corp., 587 F.Supp. 1417 (E.D.N.Y.1984), aff'd, 760 F.2d 253 (2d Cir.1985) (complaint to union); Donovan v. Freeway Const. Co., 551 F.Supp. 869 (D.R.I.1982) (OSHA complaint); Donovan v. Commercial Sewing, Inc., 562 F.Supp. 548 (D.Conn.1982) (OSHA complaint); Donovan v. R.D. Andersen Const. Co., Inc., 552 F.Supp. 249 (D.Kan.1982) (conversation with reporter); Donovan v. Peter Zimmer America, Inc., 557 F.Supp. 642 (D.S.C.1982) (OSHA complaint); Marshall v. Power City Electric, Inc., 1979 O.S.H. Dec. (CCH) p 23,947 (E.D.Wash.1979) (oral complaint to employer); Marshall v. Commonwealth Aquarium, 469 F.Supp. at 690 (OSHA complaint); Marshall v. P & Z Company, Inc., 1978 O.S.H. Dec. (CCH) p 22,579 (D.D.C.1978) (complaint to employer and outside agencies); Marshall v. Springville Poultry Farm, Inc., 445 F.Supp. at 2 (complaint to employer); Dunlop v. Hanover Shoe Farms, Inc., 441 F.Supp. 385 (M.D.Pa.1976) (complaint about working conditions made to legal services attorney).

The question then is whether, on the undisputed facts in the record, defendant has demonstrated as a matter of law that Nettles would have been discharged even if he had not filed the complaint concerning the electrical panel with the Commissioner of Labor. During his shift on 18-19 January 1984, Nettles disregarded company safety policy thereby creating two potentially life-threatening situations. The first incident occurred when Nettles, who had been working on a motor on the # 15 fermenting tank in the brewhouse, was called to a higher priority job assignment. At this time Nettles merely disconnected the wires from the motor and laid them on top of the fermenting tank. Company safety procedure required Nettles either to place a lock to secure the disconnection or to remove the fuses. The second incident occurred in the "Murphy Products" area of the plant, where employees frequently use water in proximity to the motors. Nettles temporarily hooked up a motor using only electrical tape, rather than securing the conduit with a locknut so that the conduit would be watertight.

Initially, we recognize that there is a dispute in the evidence as to whether plant manager Wooten knew about Nettles' OSHANC complaint when he made the decision to terminate Nettles. Although Wooten denied that he knew that Nettles had filed the complaint, reports prepared during the investigation of Nettles' 19 January 1984 safety violations contain a statement concerning Nettles' OSHANC complaint. Since Wooten was apprised of the information contained in these reports by Steele, the inference could be drawn that Wooten knew that Nettles had filed the OSHANC complaint in May 1983. Therefore, for purposes of summary judgment we must accept as true that Wooten knew that Nettles filed the OSHANC complaint. Similarly, based on the affidavits in the record, we must accept as true that other...