| 
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.
return to Advisory
Bulletins main page
|
