Employment Law Advisory Bulletin
Alaska Retaliatory Discharge Cases: Now Easier
for Plaintiffs to Prove, and Potentially More Damaging Too
By Parry
Grover
[May 2004]
Kinzel v. Discovery Drilling, Inc., ___ P.3d _____, 2004
WL 817455 (Alaska, 2004)
Plaintiff Jeffrey Kinzel was employed as a laborer
by Discovery Drilling, Inc. on an environmental cleanup project
at Fort Wainwright. Discovery Drilling was a subcontractor of Hart
Crowser, Inc., an environmental engineering firm. During the course
of the project, Kinzel complained to both companies about dust and
his fear of potential safety issues he believed were associated
with the dust. Kinzel was told there was no safety problem and to
“quit whining.” Kinzel eventually filed a complaint
with Alaska OSHA.
Shortly after the OSH inspector arrived on site, Kinzel was removed
from the project at Hart Crowser’s request because of his
alleged failure to wear a respirator in an area where that equipment
was required. He was assigned to another Discovery Drilling project,
albeit one in which the work was physically more demanding and was
supervised by an employee he did not like. Kinzel injured his back,
missed work and filed a workers compensation claim. He was fired
shortly after that for allegedly lying about a doctor appointment
and the reason he was off work.
Kinzel sued his employer for retaliatory wrongful termination.
He also sued both companies for defamation, negligence, and other
claims. He based his retaliation and defamation claims in part on
email messages exchanged by Discovery Drilling and Hart Crowser
managers which, for example, referred to Kinzel’s OSHA complaint
as a fresh “wound” and his workers compensation claim
as being “bogus.” Most of Kinzel’s claims were
dismissed before trial, and his few surviving claims were rejected
in a jury trial. On appeal, Kinzel sought reversal of the rulings
against him on several grounds, including his contentions that he
was entitled to a “mixed motive” jury instruction on
his retaliatory discharge claim and that he should be allowed to
recover tort damages from his employer if he proved unlawful retaliation.
The Alaska Supreme Court agreed with Kinzel.
First, the court ruled that Kinzel should have been given a mixed
motive jury instruction on his contention that he was discharged
in retaliation for filing the OSH and workers compensation claims.
In a mixed motive case – where there are both lawful and unlawful
explanations for the termination – the plaintiff need only
prove that the unlawful reason was “a motivating factor,”
not necessarily a determinative factor. Once that proof is made,
the employer can escape liability only by offering proof by a preponderance
of the evidence that it would have fired the employee for a lawful
reason. Second, the court ruled that Kinzel’s retaliatory
discharge claim, if proved, would entitle him to recover tort damages
from his employer. The court did not decide exactly what those tort
damages would be.
Analysis
The court’s approval of the mixed motive theory in Alaska
retaliatory discharge cases is expected to make it easier for plaintiffs
to prove their cases. The other theory of liability – proof
of a prima facie case of retaliation and employer pretext
– sets a more difficult burden of proof for plaintiffs than
the mixed motive theory. In addition to that, tort damages are usually
more generous to plaintiffs than contract damages. In this case,
Kinzel had contract damages of only two weeks of lost pay. On remand
of the case for retrial, he presumably will be able to seek recovery
of tort damages for emotional distress and loss of consortium as
well as punitive damages.
This decision underscores the importance of employers following
their discipline and termination policies to the letter, and of
carefully documenting the lawful reasons for termination at each
step of the disciplinary process. Many mixed motive cases stem from
situations where a poor or marginal employee who is fired also has
engaged in protected activity by making safety, environmental or
workers compensation complaints at about the same time. The discharged
employee typically accuses the employer of firing him because of
his protected activities. Employers can no longer expect to prevail
in such mixed motive cases without a strong record of disciplinary
action warranting termination on lawful grounds.
This case also highlights the risks to employers whose managers
make disparaging statements, or ambiguously unlawful statements,
by email. Nowadays, most such email messages are revealed to plaintiff
during the discovery process and inevitably enhance plaintiff’s
case as they did for Mr. Kinzel. Employers should caution their
employees not to say anything in email that they would be uncomfortable
having read back to them in front of a judge and jury.
For further information, please contact:
Carol
J. Bernick, Portland, (503) 778-5233, carolbernick@dwt.com
Mary
E. Drobka, Seattle, (206) 628-7645, marydrobka@dwt.com
James
H. Juliussen, Anchorage, (907) 257-5338, jimjuliussen@dwt.com
Stuart
W. Miller, San Francisco, (415) 276-6584, stuartmiller@dwt.com
This Employment Law Advisory is a publication of the Employer Services
Department of Davis Wright Tremaine LLP. Our purpose in publishing
this Advisory is to inform our clients and friends of recent developments
in employment law. It is not intended, nor should it be used, as
a substitute for specific legal advice as legal counsel may be given
only in response to inquiries regarding particular situations.
Copyright © 2004, Davis Wright
Tremaine LLP.
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