Hutton v Glosson Freightways, Inc., (02-390) 08/19/2003

Appeal by defendant from judgment entered 13 September 2001 and from order entered 31 December 2001 by Judge Charles Lamm in Superior Court, Davidson County. Heard in the Court of Appeals 23 January 2003.

Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett and Seth R. Cohen, for plaintiff-appellee.

Biesecker, Tripp, Sink & Fritts, L.L.P., by Joe E. Biesecker and Christopher Alan Raines, for defendant-appellant.

    McGEE, Judge.

    Charles R. Hutton (plaintiff) filed an action against Glosson Freightways, Inc. (defendant) on 14 July 1999, alleging retaliatory discharge by defendant in violation of the North Carolina Retaliatory Employment Discrimination Act (REDA), N.C. Gen. Stat. §§ 95-241 et seq. Plaintiff alleged he was terminated by defendant in retaliation for having filed a claim against defendant with the N.C. Department of Labor and/or for having filed a workers' compensation claim.
    At trial before a jury, plaintiff testified he was hired by defendant as a truck driver on 16 May 1996. Plaintiff transportedfreight for defendant to various locations in the southeast, midwest, and northeast. Plaintiff slipped on wet steps, fell out of his truck and injured his knees on 19 October 1997. Plaintiff thereafter filed a workers' compensation claim and received benefits. Plaintiff claims in his brief that the workers' compensation claim was filed in June 1998, but there is nothing in the record revealing when plaintiff filed the claim.
    As a result of his injuries, plaintiff had surgery on his knees on 29 April 1998 and 12 June 1998. He returned to light duty work for defendant on 29 June 1998, working six hours that day, and then was again out of work. Plaintiff testified that he discussed his vacation pay with Wade Perry (Perry), defendant's vice president, on 29 June 1998. When plaintiff did not receive his vacation pay, he filed an employment discrimination complaint and a wage and hour complaint with the North Carolina Department of Labor dated 10 July 1998, alleging denial of vacation pay by defendant.
    Plaintiff returned to work with defendant on 8 August 1998. He was then out of work from 28 August 1998 until 10 October 1998, when he resumed truck driving duties, subject to a medical restriction not to load or unload trucks. Plaintiff acknowledged that it was defendant's policy that truck drivers be available for loading and unloading of freight if requested by the customer. However, plaintiff also testified that when he was hired by defendant, he was told that drivers did not have to load or unload freight ninety-eight percent of the time. Plaintiff testified thathe had only been required to unload freight on one occasion and that defendant usually hired assistants to help unload its trucks.     Plaintiff testified that after his surgeries he was given shorter trips with more frequent layovers. During a meeting on 25 January 1999 with Doug Glosson, owner of defendant company, plaintiff was told that he was not receiving the same type of trips that he had received before his injuries because plaintiff had "limitations where [he could not] load or unload." Plaintiff responded that his doctor had removed any work restrictions on 4 January 1999. Doug Glosson testified that after the meeting, he told the company's dispatchers to return plaintiff to regular trips.
    Plaintiff learned on 29 January 1999 that he was being dispatched to Columbus, Ohio. Plaintiff called Cliff Glosson, dispatcher for defendant, to inform him that plaintiff did not want the trip because plaintiff had a doctor's appointment on Thursday, and that if plaintiff took the trip plaintiff would get back on Tuesday and would not be able to take another trip before his doctor's appointment, preventing plaintiff from driving adequate miles that week. Cliff Glosson told plaintiff there was nothing he could do since the Columbus route was plaintiff's assigned dispatch. Plaintiff admitted he and Cliff Glosson got into a telephone "discussion" and that plaintiff told Cliff Glosson that, "if I had a dog as dumb as him I would shoot the dog." Cliff Glosson told plaintiff he needed to come to the terminal to discuss the trip further. Plaintiff went to the terminal and begandiscussing the trip with Cliff Glosson, who told plaintiff that Doug Glosson said to cancel plaintiff's trip to Columbus. Plaintiff then met with Doug Glosson to discuss the trip and the disagreement plaintiff had with Cliff Glosson.
    Doug Glosson testified that when he arrived at the terminal, Cliff Glosson told him what had occurred and several people told him that plaintiff was angry and yelling. Doug Glosson brought together plaintiff, Cliff Glosson, Perry and Larry Sutton, director of personnel and safety for defendant, to discuss what had happened. Doug Glosson asked plaintiff what had occurred with Cliff Glosson. Plaintiff said that Doug Glosson had already heard about it from Cliff Glosson; Doug Glosson said he wanted to hear plaintiff's side of the story. Plaintiff asked if he could get a tape recorder and Doug Glosson said he did not think a tape recorder was necessary. Plaintiff refused to discuss with Doug Glosson what had occurred. Plaintiff testified Doug Glosson said plaintiff was always complaining and that the company could not please him. Doug Glosson testified that he reached the conclusion that he and plaintiff needed to part company, and he fired plaintiff.
    James Browning (Browning), a former employee of defendant, testified that he had been fired by defendant for failing to come to work, even though his doctor had told him to stay out of work. Browning testified that Doug Glosson told him that Doug Glosson "didn't think he could work with somebody who was suing him." Browning also testified he had been an employee in the dispatchoffice when plaintiff returned to work after plaintiff's surgeries and that Browning observed that plaintiff was treated differently. Browning further testified that other employees had made threats against co-workers and had not been disciplined.
    Defendant moved for directed verdict at the close of plaintiff's evidence and at the close of all the evidence. The trial court reserved its ruling on both motions and submitted plaintiff's claims to the jury. The jury returned a verdict for plaintiff for $30,000.00, finding that: (1) plaintiff's participation in conduct protected by law was a substantial factor in defendant's decision to terminate plaintiff; (2) defendant would not have terminated plaintiff "if plaintiff had not participated in" the protected activity; and (3) plaintiff's termination was intentional and without justification. Defendant renewed its motion for directed verdict, which the trial court denied.
    The trial court stated that after taking into consideration the jury's recommendation and after making its own independent consideration of the evidence, it determined that plaintiff was injured by defendant's willful violation of N.C.G.S. § 95-241 and awarded plaintiff treble damages of $90,000.00, with pre-judgment interest of eight percent per annum from the date of the filing of the lawsuit. The trial court entered judgment on 13 September 2001.
    Defendant filed motions on 24 September 2001 for judgment notwithstanding the verdict pursuant to N.C. Gen. Stat. § 1A-1, Rule 50(b), or in the alternative for a new trial under N.C. Gen.Stat. § 1A-1, Rule 59(a), and for relief from the judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b). The trial court held a hearing on defendant's motions on 13 December 2001 and entered an order on 31 December 2001 denying defendant's motions. Defendant appeals from the 31 December 2001 order and from the 13 September 2001 judgment.
    Defendant has not presented an argument in support of assignments of error 12, 13, and 18; these assignments are therefore deemed abandoned. N.C.R. App. P. 28(b)(6).
    Defendant first argues that the trial court erred in denying its motion for judgment notwithstanding the verdict because the termination of plaintiff from his employment was not causally related to the filing of his N.C. Department of Labor claims or workers' compensation claim. In discussing both a motion for directed verdict and a judgment notwithstanding the verdict, our Court has stated:
        [T]he question presented is whether the evidence is sufficient to take the case to the jury and to support a verdict for plaintiff. Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977). The evidence is viewed in the light most favorable to plaintiff, and the plaintiff must be given the benefit of all the reasonable inferences therefrom. Shields v. Nationwide Mut. Fire Ins. Co., 61 N.C. App. 365, 374, 301 S.E.2d 439, 445, disc. review denied, 308 N.C. 678, 304 S.E.2d 759 (1983). . . . The motion for directed verdict may be granted only if the evidence is insufficient, as a matter of law, to support a verdict for the plaintiff. . . . A motion for judgment notwithstanding the verdict is essentially the renewal of a prior motion for a directed verdict. Harvey v. Norfolk Southern Ry., 60 N.C. App. 554, 556, 299 S.E.2d 664, 666 (1983). Therefore, theserules, regarding the sufficiency of the evidence to go to the jury, are equally applicable to a motion that judgment be entered in accordance with the movant's earlier motion for a directed verdict, notwithstanding the contrary verdict reached by the jury. Summey v. Cauthen, 283 N.C. 640, 648, 197 S.E.2d 549, 554 (1973).

Henderson v. Traditional Log Homes, 70 N.C. App. 303, 306, 319 S.E.2d 290, 292-93, disc. review denied, 312 N.C. 622, 323 S.E.2d 923 (1984).
    Under REDA, plaintiff must prove that his retaliatory discharge occurred because he filed claims with the N.C. Department of Labor and/or for workers' compensation. Where, as in this case, plaintiff has presented no direct evidence of retaliation, plaintiff's argument that his firing was in retaliation for filing these claims fails where there is "no close temporal connection between plaintiff's instituting a [protected] claim and [plaintiff's] termination." Salter v. E & J Healthcare, Inc., ___ N.C. App. ___, ___, 575 S.E.2d 46, 50 (2003); Johnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C. App. 676, 682, 535 S.E.2d 357, 361, appeal dismissed and disc. review denied, 353 N.C. 265, 546 S.E.2d 102 (2000); Shaffner v. Westinghouse Electric Corp., 101 N.C. App. 213, 216, 398 S.E.2d 657, 659 (1990), disc. review denied, 328 N.C. 333, 402 S.E.2d 839 (1991).
    In the present case, plaintiff was terminated on 29 January 1999, more than six months after he filed his complaints with the N.C. Department of Labor and at least seven months after he filed a workers' compensation claim for his 19 October 1997 injury. Plaintiff claims that his general complaints about retaliation uponreturning to work in October 1998 were also a protected activity under REDA. However, plaintiff cites no authority for this proposition, and further, plaintiff admits in his brief that his termination occurred over three months after his return to work.
    Although an exact time period required for a close temporal connection under REDA has not been specifically stated by our Courts, based upon our Court's prior decisions, plaintiff cannot establish, as a matter of law, a close temporal relationship between the filing of his workers' compensation claim and his termination by defendant. Our Court recently held that there was no close temporal connection as a matter of law where a plaintiff was terminated three months after filing a workers' compensation claim. Salter, ___ N.C. App. at ___, 575 S.E.2d at 50. In Shaffner, our Court held that there was no close temporal relationship where approximately two and one-half months had passed between the filing of a workers' compensation claim and the plaintiff's termination. Shaffner, 101 N.C. App. at 215-16, 398 S.E.2d at 659. Also, in Johnson, 139 N.C. App. at 682-83, 535 S.E.2d at 362, our Court held that there was no close temporal relationship where the claim was filed a year prior to the adverse employment action.
    Similarly, the federal district courts in North Carolina have recognized that both the North Carolina courts and the federal courts require a "close temporal connection," and that if too much time has passed "it is unreasonable to infer that retaliation was the reason for the adverse employment action." Wilkerson v.Pilkington North America, Inc., 211 F. Supp. 2d 700, 707 (M.D.N.C. 2002) (citing several federal district court cases in North Carolina imposing this requirement on REDA claims). For example, the federal court in Wiley v. United Parcel Service, Inc., found that five months was "not sufficiently close in time to establish a causal connection." 102 F. Supp. 2d 643, 651 (M.D.N.C. 1999), aff'd per curiam, 11 Fed. Appx. 176 (4th Cir. 2001).
    The parties do not dispute the time lapse between plaintiff's termination from employment and the dates plaintiff filed his workers' compensation claim and his complaints with the N.C. Department of Labor. Plaintiff failed to prove as a matter of law that his termination had a close temporal connection to his filing a claim for workers' compensation and/or his complaints with the N.C. Department of Labor. The trial court erred in denying defendant's motion for judgment notwithstanding the verdict in that plaintiff failed to show a close temporal connection as a matter of law.
    We remand this matter for entry of judgment notwithstanding the verdict for defendant.
    Reversed and remanded.
    Judges HUNTER and CALABRIA concur.
    Report per Rule 30(e).

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