4th Circ. Says NC Law May Shield Internal Safety Complaints

North Carolina law protected a construction worker from retaliation when he called out a colleague’s on-duty intoxication, the Fourth Circuit said Thursday in a ruling clarifying protections for workers who report safety concerns internally rather than to state authorities.

The unpublished panel ruling holds that internal complaints alleging Occupational Safety and Health Act of North Carolina violations may be protected by the state’s Retaliatory Employment Discrimination Act based on three factors: whether the complaint “relates or leads to an investigation,” is made to someone other than the plaintiff’s direct boss and is about workplace safety.

Fired Summit Contracting Group Inc. Assistant Superintendent Justin Driskell’s complaint about Superintendent Daniel Rhyner met these criteria, the panel said, affirming Driskell’s jury win on retaliation claims and separately vacating a district court decision limiting his payout.

“These allegations led to [senior employee Tom] Born’s investigation into Rhyner’s drinking. Driskell complained frequently to Mr. [Marc] Padgett, who is Summit’s president and chief executive officer, not a mere supervisor or manager. And workplace safety was the focus of Driskell’s complaints,” the panel said. “Thus, REDA protects Driskell’s complaints to Mr. Padgett.”

Driskell’s attorney, Josh Van Kampen of Van Kampen Law PC, said he was “psyched” by a decision he called “the most definitive holding yet on what constitutes protected activity” under the REDA.

“The holding is timely given the pandemic because it adds clarity about when an employee is protected or not protected for reporting health and safety issues, including COVID-19,” Van Kampen said in an email to Law360.

Attorneys for Summit did not immediately respond to requests for comment.

Summit appealed Driskell’s jury win on claims the company fired him after he reported that Rhyner repeatedly showed up to work drunk. The company argued the district court made several errors in a decision denying its bid for a new trial, including that it misunderstood the REDA and gave too much weight to Driskell’s evidence of retaliation.

The company argued that the REDA did not shield Driskell from retaliation because he complained internally. The law forbids employers from retaliating against workers who “initiate any inquiry [or] investigation … or provide information to any person with respect to OSHANC,” and the North Carolina Supreme Court has not explicitly said whether the REDA protects internal complaints.

But the court has indicated “some internal complaints are protected,” the panel said, pointing to decisions standing for the principles behind the three-part test it articulated Thursday.

Summit also argued that Driskell did not have claims for retaliation and wrongful discharge, which he also won, because he quit.

But “at no point did Driskell quit his job,” the panel said. Though Driskell said following a dust-up with Rhyner that he would quit if Rhyner kept his job, “threatening to quit and actually doing it are two different things.” The facts that Summit deactivated his company phone, ignored his calls and asked him to return his tools also suggest he was fired, the panel said.

“A reasonable person in Driskell’s position would have understood that he had been terminated,” the panel said.

The panel rejected several other challenges to Driskell’s win, and a panel majority also said the trial court was wrong to make him choose between $250,000 in punitive damages under his wrongful discharge claim and about $440,000 in attorney fees under his REDA claim.

The majority said Driskell could collect both payouts because the statutes serve “‘wholly different’ interests” and are based on different conduct: the discharge claim on “fraud, malice, or willful or wanton conduct” and the attorney fees on the reasonableness of the request.

Judge William Traxler dissented, saying both payouts redress the same misconduct.

Judges Albert Diaz, Stephanie Thacker and William Traxler sat on the panel for the Fourth Circuit.

Driskell is represented by Josh Van Kampen and Nicole Haynes of Van Kampen Law and Laura Wetsch of Winslow & Wetsch PLLC.

Summit is represented by Reginald Belcher and Richard Speer of Turner Padget Graham & Laney PA.

The case is Justin Driskell v. Summit Contracting Group Inc., case number 19-1456, in the U.S. Court of Appeals for the Fourth Circuit.