Driskell v. Summit Contracting Grp., Inc.

• Decision Date: 28 June 2018
• Docket Number: DOCKET NO. 3:16-cv-00819-FDW-DSC
• Citation: 325 F.Supp.3d 665
• Parties: Justin DRISKELL, Plaintiff, v. SUMMIT CONTRACTING GROUP, INC., Defendant.
• Court: U.S. District Court — Western District of North Carolina

325 F.Supp.3d 665

Justin DRISKELL, Plaintiff,

v.SUMMIT CONTRACTING GROUP, INC., Defendant.

DOCKET NO. 3:16-cv-00819-FDW-DSC

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

Signed June 28, 2018

Joshua Reed Van Kampen, Sean Franklin Herrmann, Kevin Patrick Murphy, Van Kampen Law, P.C., Charlotte, NC, for Plaintiff.

Reginald Wayne Belcher, Hannah Davis Stetson, Turner Padget Graham and Laney PA, Columbia, SC, H. Mark Hamlet, Turner Padget Hamlet & Associates, PLLC, William Taylor Stanley, Hamlet & Associates, PLLC, Wilmington, NC, Richard Taylor Speer, Turner Padget Graham & Laney, P.A., Greenville, SC, for Defendant.

ORDER

Frank D. Whitney, Chief United States District JudgeTHIS 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, 128 S.Ct. 2605, 171 L.Ed.2d 570 (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., 219 N.C.App. 19, 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., 219 N.C.App. 19, 724 S.E.2d 568 (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...