Florida Construction News staff writer
An appellate court has ruled that a North Carolina construction worker is entitled to more than $1 million in damages and attorney’s fees after he was fired for complaining about his supervisor’s intoxication at job sites.
In Driskell v. Summit Contracting Group Inc., the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, affirmed on Sept. 27 a jury’s ruling that the worker was retaliated against for threatening to file a workers compensation claim after being punched by the supervisor and for complaining about the safety risk the supervisor’s intoxication presented, Business Insurance has reported.
Justin Driskell worked as an assistant superintendent for Summit Contracting Group, headquartered in Jacksonville.
In June and July 2015, he noticed that his supervisor frequently drank alcohol at lunch and returned to work intoxicated, and on one occasion “drunkenly brandished a handgun at the job site” in violation of multiple workplace policies, the cour filings say. Driskell said he reported the supervisor’s behavior several times to senior managers, contending that he presented a safety risk.
The oral argument before the appellate court
Driskell contacted Summit’s CEO Marc Padgett on July 16 that year and complained about his supervisor’s drinking on the job, according to the filings. Another senior employee was asked to investigate the complaint, but said he could not corroborate Driskell’s claims, court documents say.
On July 20, Driskell and his supervisor argued over a safety issue outside a bar, and the supervisor punched Driskell in the face repeatedly when he’d turned to walk away. Driskell wrestled with the supervisor and put him in a headlock. Neither was seriously hurt but both sought medical treatment. Driskell was released back to work in three days; the supervisor required the use of a neck brace for two weeks, the court documents say.
The supervisor told Driskell he was fired, though he was not formally terminated and realized that he had been let go when his workplace iPad and cell phone were deactivated.
In January 2016, Driskell filed a complaint with the North Carolina Department of Labor alleging that he was terminated for reporting safety issues and because Summit believed that he would file a workers compensation claim.
A jury held that Summit fired Driskell in retaliation and awarded him $65,000 in compensatory damages, $681,000 in punitive damages for wrongful discharge and $441,600 in attorney’s fees.
Summit appealed, seeking a new trial and arguing that the jury’s award was not supported by the evidence. The appellate court affirmed the decision. Although Summit argued that internal complaints are not protected from retaliation, the court disagreed, saying that internal complaints of ongoing safety concerns can be protected when they lead to an investigation — which is what happened when the CEO directed another worker to investigate the supervisor’s drinking.
Summit also argued that because Driskell never explicitly “threatened” to file a workers comp claim nor filed one, that he could not claim he was retaliated against, but the appellate court found that the jury could find that the law prohibits an employer from firing someone in anticipation of a “good-faith filing of a workers’ compensation claim.”
Finally, Summit argued that it fired Driskell because of the legitimate reason of insubordination and fighting with his supervisors. The appellate court, however, disagreed, noting that internal emails provided “ample evidence to support causation” of both of Driskell’s retaliation theories.
The court also affirmed the jury’s award of damages and attorney’s fees, but one judge dissented on the award of punitive damages and attorney’s fees, Business Insurance reported.