Verdict May Set Record for Employment Case Punitives

By: David Donovan
A construction worker who was fired from his job working on a project in Charlotte—and physically assaulted by the project’s superintendent after complaining to management that the superintendent was drinking on the job—has won a $750,000 verdict against his former employer in federal court, attorneys for the worker report.

Joshua Van Kampen, Sean Herrmann and Kevin Murphy of Van Kampen Law in Charlotte report that their client, Justin Driskell, was working for Summit Contracting Group in 2015 on a project repairing some student housing at UNC Charlotte. Driskell, an assistant superintendent, told Summit’s management that the superintendent on the project, identified in court documents only as John Doe, frequently got drunk during lunch and acted in a threatening manner to many of his employees.

Driskell said that Summit took no disciplinary action against Doe, explaining that doing so would look bad to the client. A few mornings later, Doe, allegedly already drunk, confronted Driskell at the work site and threatened to fire him, according to the complaint. Doe then attacked Driskell, punching him in the face and beating his head into the pavement. When Summit’s management refused to return any of Driskell’s phone calls after the attack, Driskell drew the inference that he had been fired. (Doe remained employed, however.)

Driskell sued Summit, alleging wrongful discharge, battery, negligent retention and supervision, and violations of the North Carolina Retaliatory Employment Discrimination Act (REDA). On Feb. 2, a jury in the U.S. District Court for the Western District of North Carolina returned a $750,000 verdict against the company, including $681,000 in punitive damages.

“We asked the jury to send a message, not just to construction companies, but just to companies in town generally, that in Charlotte we take our workplace safety seriously, and we asked the jury to also send a message to workers that if they see dangerous situations at work that they should report it, and that if they are retaliated against for reporting it, we wanted to jury to say that we will have your back,” Van Kampen said. “And the jury said pretty loudly and clearly that they had his back.”

The decision not to name the superintendent as an individual defendant in the case was a strategic one, Van Kampen said. By the time the complaint was filed, Driskell had forgiven the superintendent, but he never forgave Summit for ignoring the danger present and allowing it to fester.

The attorneys said that the case was significant in several ways. First, based on his firm’s research, the punitive damages award is the largest ever issued in the Western District in an employment case. Punitive damages are rare because they require clear and convincing evidence that the defendant engaged in willful and malicious conduct. But Van Kampen said that during testimony company witnesses repeatedly deviated from statements they had made during depositions, which may have helped spur the jury’s punitive damages award.

“We put on evidence that the company engaged in fraud, or at the very least a cover-up to make it look like our client resigned, when their own internal documents showed he was terminated,” Van Kampen said.

The attorneys said they also believe that this is the first case providing a ruling that making an internal complaint within a company about a safety issue counts as a complaint initiating an inquiry as defined in REDA. They also noted that Judge Frank Whitney ruled that reporting a workplace assault to the police is a protected activity for the purposes of a wrongful discharge claim, which they also believe is a novel ruling in North Carolina.

Van Kampen added that his client would be filing a fee petition and seeking reinstatement and/or front pay, either of which would significantly push up the total size of the award.

Taylor Speer, Reggie Belcher and Hannah Stetson of Turner Padgett in Columbia, South Carolina represented Summit.

“Summit disagrees with the result and will challenge the verdict with post-trial motions,” Speer said in a written statement. “The company intends to appeal to the United States Court of Appeals for the Fourth Circuit, if necessary.”