Construction Worker Fired, Punched for Complaining About Drunk Boss Wins $1M

A federal appeals court has ruled that a North Carolina employee who was attacked and fired after he complained about his supervisor’s intoxication on the job is entitled to more than $1 million in damages and legal costs.

Construction worker Justin Driskell brought claims for retaliatory termination in violation of the state’s Retaliatory Employment Discrimination Act (REDA) and wrongful discharge in violation of North Carolina common law. He alleged there were two reasons Summit fired him: because of his complaints about his supervisor’s drinking and a fight they had, and because his employer believed that he would file a workers’ compensation claim due to his injuries from the fight his boss started.

A Western North Carolina district jury sided with Driskill but the court then required him to choose between either $250,000 in punitive damages (reduced from the jury award of $681,000) or $441,600 for attorney’s fees but not get both because of a state law against duplicative rewards. It also awarded him $65,000 in compensation for lost wages.

The district court reasoned that North Carolina law prevents duplicative remedies, and the law applied because the awards of punitive damages and attorney’s fees were based on the same conduct, namely, Summit’s retaliatory firing. Driskell chose to forgo punitive damages, collecting $195,000 in trebled compensatory damages and $441,600 in attorney’s fees.

Both parties appealed.

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia rejected Summit’s arguments for judgment and its claims that it did not really fire Driskill but if it did, it had a legitimate busines reason to do so. The court found that the evidence showed that not only did Summit violate REDA and common law in its treatment of Driskill but also it had acted with malice toward its former employee. Discovery also yielded evidence that Summit had shown hostility toward other workplace safety reports and workers’ compensation claims.

The appeals court also partially reversed the lower court, ruling that Driskill was entitled to untrebled lost wages of $65,000 plus both the jury’s original award for $681,000 in punitive damages on the wrongful-discharge claim and $441,600 in attorney’s fees on the REDA claim. The appeals court ruled that “the two awards serve different interests and aren’t based on the same conduct.”

Under North Carolina’s law, a plaintiff may not recover “inconsistent remedies” or remedies that would provide “double redress for a single wrong.” The appeals court said punitive damages and attorney’s fees are not inconsistent remedies and that whether they are duplicative turns on whether they “serve different interests and are not based on the same conduct.”

The court said that “without question, the two awards serve “wholly different” interests, maintaining that punitive damages are designed to punish willful conduct and to deter others from committing similar acts, while an award of attorneys’ fees is intended to address costs that arise in the course of the litigation of a particular case.

Further, the ruling continued, the two awards are not based on the “same conduct.” To recover punitive damages, Driskell had to prove that Summit’s conduct involved fraud, malice, or willful or wanton conduct. In contrast, REDA gives the trial court discretion to award fees and costs to a prevailing plaintiff—irrespective of the defendant’s conduct—provided the plaintiff can show that such fees and costs are reasonable.

Facts of the Case

According to the facts as cited by the court, on his job at Summit, Driskill reported to Daniel Rhyner. In June and July 2015, Driskell noticed that Rhyner frequently drank alcohol at lunch and returned to work intoxicated, occasionally acting belligerently. One day, Rhyner drunkenly brandished a handgun at the job site. Summit’s policies prohibit visiting a job site after drinking or while carrying a gun.

Driskell reported Rhyner’s drinking to senior employees several times. During his first week at a project in Charlotte, he complained that it was a safety issue. The complaint was relayed to Marc Padgett, Summit’s president and chief executive officer. Driskell’s father, who was also an employee, also relayed his son’s complaints to Padgett’s wife, Nicole Padgett, who was Summit’s chief administrative officer. The Padgetts, however, suspected that the father and son Driskells were scheming to file a “bogus lawsuit” against Summit.

One night, Driskell ran into Rhyner, who was drunk, in the parking lot of a hotel where many employees were staying. They argued about a workplace safety issue, at which point Rhyner angrily told Driskell to pack his things and leave the job site.

Later that night, Driskell spoke with the CEO on the phone and complained again about Rhyner’s drinking on the job. The CEO told Driskell to disregard what Rhyner had said about leaving the job site and that he would send someone to Charlotte to investigate Driskell’s complaints. After the call, Rhyner apologized to Driskell.

On July 18, the employee sent to investigate asked a few employees whether they had seen Rhyner drink at the job site, which none of them had. He didn’t test Rhyner for drugs or alcohol, check his company credit card receipts (which reflected purchases of alcohol), or ask anyone if they had seen Rhyner drink at lunch, as Driskell had alleged. The investigator then met with Driskell and told him to stop telling people what was going on at the job site, and that whatever happened at the job site should stay there.

A day later, Driskell again saw Rhyner, who appeared drunk, in the hotel parking lot. At Rhyner’s insistence, the two had a beer together. Rhyner then said that he was removing some employees from the team that Driskell supervised, and that Driskell’s team needed to increase its production even though it would have fewer members. Driskell said that pushing his team any harder would create safety issues. The two argued about this and cursed each other. According to Driskell and an eyewitness, Driskell then turned toward his truck to leave. Rhyner followed him and punched him in the face repeatedly. Driskell didn’t throw a punch, but wrestled with Rhyner, threw him over his head, and put him in a headlock. Neither party was hurt seriously, although Rhyner had to wear a neck brace for two weeks. During the fight, Rhyner told Driskell, “You’re fired.”

Later, Driskell spoke to the CEO on the phone. The CEO told Driskell that he wasn’t fired and that Rhyner lacked the authority to fire him. Driskell replied that he would quit if Rhyner remained at Summit. The owner didn’t respond to that threat. Soon thereafter, Driskell was asked by a senior employee to return his work tools. Driskell expressed confusion about why he had to do that, as he planned to continue working at Summit, but he ultimately complied.

That same night, Driskell filed a criminal complaint against Rhyner—even though the CEO had discouraged him from doing so—which led the police to charge Rhyner with assault. Driskell also visited the emergency room for medical treatment. The doctor said that he could return to work three days later.

The next morning, the chief administrative officer emailed her husband (the CEO) and several other employees, claiming the Driskells were “plotting a bogus lawsuit” with “the intent to screw” the company out of $5 million.

Driskell called and texted the company repeatedly, seeking clarity on where he should report to work. He got no answer. The CEO told the court they did not respond because they were waiting for instructions for the company’s attorney. Within days, the senior employees and CEO discussed designating someone to fire Driskill and collect his company phone and iPad devices. Notwithstanding this conversation, no Summit employee (except for Rhyner back after the fight) ever told Driskell that he was fired. However, Driskell’s company-issued phone and iPad were deactivated.

At trial, Driskill testified that he “knew at that point that [he] had been terminated and that it was not going to be reversed.” Nevertheless, he texted his supervisor later that evening: “Still haven’t heard any word as to what you need me to do. Please give me a call.” Nobody never responded.

Driskell turned in his company-issued devices. He explained at trial that he did so because he “knew . . . that [he] had been fired and that if [he] kept company property that [he] could be prosecuted for theft.”

About a month later, Driskell applied for a new job at another company. On the application, he checked a box indicating that he had never been “fired from a job.” At trial, Driskell explained that this was a lie to improve his chances of getting the new job.

In January 2016, Driskell filed a complaint with the North Carolina Department of Labor. He alleged that he was fired because of his complaints about Rhyner and his refusal (for safety reasons) to increase his team’s production, and because he “became a threat, risk or liability to the company” after Rhyner attacked him. After the Labor Department declined to investigate his complaint, Driskell asked for and received a right-to-sue letter and Driskell then filed this suit.

The case is Justin Driskill v. Summit Contracting.

Topics North Carolina Construction