GRIFFIN INDUSTRIES, INC. v. BOBBY J. MULLEN
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RENDERED:
MARCH 31, 2006; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001593-MR
AND
NO. 2004-CA-001795-MR
GRIFFIN INDUSTRIES, INC.
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 03-CI-00028
BOBBY J. MULLEN
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING ON APPEAL AND CROSS-APPEAL
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE AND HENRY, JUDGES.
COMBS, CHIEF JUDGE:
Griffin Industries, Inc. (Griffin) appeals
and Bobby J. Mullen cross-appeals a judgment of the Logan
Circuit Court that awarded $120,751.69 to Mullen.
Mullen
claimed that Griffin had wrongfully discharged him in
retaliation for seeking workers’ compensation benefits, and a
jury agreed.
Griffin now argues that it was entitled to a
directed verdict.
It also contends that the trial court erred
in the amount that it awarded to Mullen for his attorney’s fee.
In his cross-appeal, Mullen argues that the trial
court erred in failing to instruct the jury on the issue of
punitive damages.
He contends that the court committed
additional error by reducing the jury’s award for lost wages by
the amounts that he received in unemployment compensation
benefits.
Finding no error, we affirm.
In 1994, Mullen was hired by Griffin to work as a
truck driver.
Beginning in 2000, he was placed on a grease
route, an assignment that entailed removing grease from tanks at
various fast food establishments for recycling.
On April 16,
2002, he slipped and fell while removing grease from a
receptacle at a Kentucky Fried Chicken restaurant; he sprained
his wrist.
He finished his shift and then sought medical
treatment.
His wrist was placed in a cast.
Mullen reported the accident, and he and his
supervisor completed the necessary forms for review by Griffin’s
safety committee.
The committee determined that Mullen could
have prevented the accident if he had cleared the debris around
the grease tank before attempting to empty its contents.
Wayne
Stewart, General Manager at the Russellville plant where Mullen
worked, instructed Mullen to come to the plant and watch safety
films during his recuperation.
One week after the accident, on
the day that Mullen became eligible for temporary total
disability benefits, Stewart told Mullen that he had been
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instructed by someone at the corporate office to terminate his
employment with the company.
On January 24, 2003, Mullen filed a lawsuit in which
he alleged that he had been discharged in violation of KRS1
342.197 for pursuing workers’ compensation benefits.
He sought
damages to compensate him for his past and future lost wages and
for emotional distress.
damages.
He also asserted a claim for punitive
The matter was tried before a jury in April 2004.
At the conclusion of the evidence, the trial court
denied the parties’ respective motions for a directed verdict.
It also decided to reserve for later resolution the issues of
punitive damages and of damages for Mullen’s alleged emotional
distress.
The court instructed the jury as follows:
You will find for Bobby Mullen if you
are satisfied from the evidence that his
filing of a workers’ compensation claim
against Griffin Industries was a substantial
and motivating factor in Griffin
Industries[’] decision to discharge him, but
for which he would not have been discharged.
During its deliberation, the jury asked for
clarification of the “but for” language in the instruction; that
is, if a verdict in Mullen’s favor required the jury to find
that the filing of the workers’ compensation claim constituted
the sole basis for his discharge.
After consulting with the
attorneys, the trial court read the instruction to the jurors
1
Kentucky Revised Statutes.
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two more times and suggested that they look at the verdict form
on the page following the instruction.
The judge told the
jurors that it was “a mechanical thought process”:
they either
believed or did not believe that the firing would not have
occurred but for the filing of the workers’ compensation claim.
After further reflection, the jury returned a verdict
for Mullen, awarding him lost wages and benefits totalling
$106,670.
Mullen then voluntarily waived his claim for damages
for emotional distress.
The court decided not to submit the
issue of punitive damages to the jury.
It reasoned that
although there was sufficient evidence that Mullen’s termination
was improperly motivated, it believed that there was no evidence
of a company-wide policy to discharge its employees under
similar circumstances that would justify or necessitate an award
of punitive damages as a deterrent.
Griffin’s motion for a judgment notwithstanding the
verdict (JNOV) was denied.
Pursuant to post-judgment motions,
the trial court reduced the jury’s award by $19,539 (of which
$13,299 represented unemployment insurance benefits paid to
Mullen) and awarded Mullen $31,625 in attorney’s fee.
A final
judgment in the amount of $120,751.69, was entered on August 4,
2004.
This appeal and cross-appeal followed.
Griffin argues that it was entitled to a directed
verdict or a JNOV on Mullen’s claim that he was the victim of a
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retaliatory discharge.
third in two years.
Mullen’s April 2002 accident was his
Therefore, Griffin contends that the only
reasonable conclusion the jury could reach was that Mullen was
discharged pursuant to its “three-strikes-you’re out” policy.
Relying on Henderson v. Ardco, Inc., 247 F.3d 645 (6th Cir. 2001)
and Daniels v. R. E. Michel Co., Inc., 941 F.Supp. 629 (E.D. Ky.
1996), Griffin argues that a termination prompted by a
“neutrally applied non-discriminatory company policy” cannot
constitute retaliatory discharge as a matter of law.
(Appellant’s brief at p. 14.)
We apply the same standard of review to a court's
ruling on a motion for a directed verdict as to a judgment
notwithstanding a verdict.
Prichard v. Bank Josephine, 723
S.W.2d 883, 885 (Ky.App. 1987).
In ruling on either a motion for a
directed verdict or a motion for judgment
notwithstanding the verdict, a trial court
is under a duty to consider the evidence in
the strongest possible light in favor of the
party opposing the motion.
Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky.App. 1985).
The
trial court must also “give the opposing party the advantage of
every fair and reasonable inference which can be drawn from the
evidence.”
Id.
The court may not enter a directed verdict nor
may it grant a JNOV "unless there is a complete absence of proof
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on a material issue in the action, or if no disputed issue of
fact exists upon which reasonable men could differ."
Id.
In denying Griffin’s motions for a directed verdict
and for a JNOV, the trial court alluded to inconsistencies in
the testimony of Griffin’s employees with respect to its safety
policies and the absence of any reason other than retaliation
for the termination.
After reviewing all of the evidence
presented at trial, we can find no error in the court’s decision
to submit the matter to the jury.
We agree that there is
evidence from which a reasonable jury could believe that
Mullen’s firing was directly related to his claim for workers’
compensation benefits.
The relevant portions of Griffin’s published safety
program provide as follows:
The Company strives to provide a safe
place to work. Employees are expected to do
their part to work safely, wear required
safety equipment, observe all safety rules
and regulations, and keep their work places
in a safe manner. . . .
Any accident or injury, no matter how
slight, is to be reported to your supervisor
no later than 24 hours after
occurrence. . . . An accident report form
must be completed by the employee with the
supervision of his/her foreman. Generally,
the foreman will conduct an investigation of
the accident within 24 hours after receiving
the employee’s report.
The accident report and foreman’s
accident investigation report must be
submitted to the safety committee at the
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local plant within 24 hours. The safety
committee is comprised of three workers
selected in an election among all plant and
fleet employees. . . . The safety committee
must render a decision within 72 hours,
determining if the accident is due to the
negligence of the employee.
. . . .
Employees who are involved in
preventable accidents . . . shall be subject
to disciplinary action. . . . An employee
charged with a preventable accident which
has occurred within the last three years is
on probation and may be subject to
termination upon the occurrence of his/her
next preventable accident. (Emphasis added.)
In addition to its written policy, Griffin introduced
testimony concerning an unwritten policy which it claimed to
have been the true basis for Mullen’s discharge.
According to
company witnesses, an employee charged by the safety committee
with three preventable accidents was automatically terminated.
As noted earlier, Mullen’s accident of April 16, 2002,
was his third accident within a two-year period.
He previously
had had two minor traffic mishaps, which the safety committee
had concluded were preventable.
However, contrary to Griffin’s
contention that Mullen’s firing was required by its safety
policy, Stewart testified that the decision to fire any employee
at his plant was a matter within his discretion.
Steve Cutter,
Vice President of Human Relations, and Wayne Stanberry, Safety
and Risk Manager, affirmed that the decision to fire Mullen was
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made by Stewart in the exercise of his discretion.
Cutter and
Stanberry, who both work at the corporate headquarters at Cold
Spring, Kentucky, denied that they encouraged or caused Stewart
to terminate Mullen.
By its express terms, the written policy does not
remove discretion from the general manager in deciding whether
to retain or to fire employees who are charged by the safety
committee with two or more preventable accidents.
Rather than
containing a mandate, the policy provides that an employee may
be terminated.
With respect to the alleged unwritten policy,
Cutter, who was in charge of human resources for the entire
company, negated the notion that three accidents resulted in an
automatic firing.
Stewart, who had the ultimate authority to hire and
fire employees at the Russellville plant, acknowledged to the
jury that he did not want to terminate Mullen.
The evidence
established that instead of immediately firing Mullen, he had
instructed Mullen to watch safety films.
Stewart testified that
he hated to lose Mullen, whom he characterized as a dependable
worker, and that he discharged him only after discussing the
matter with Stanberry, the safety manager.
Even though Stewart
testified at trial that he was responsible for firing Mullen,
reasonable jurors could infer from the totality of his testimony
that he was directed by Stanberry (who coincidentally was the
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corporate officer in charge of workers’ compensation benefits)
to terminate Mullen from the company.
The evidence also raised a question as to the
neutrality or consistency in enforcement of Griffin’s safety
program.
Although the written policy provides that any and all
accidents are to be reported to the committee, the testimony
indicated that the actual practice was otherwise.
The evidence
revealed that if Mullen’s fall at the KFC restaurant had not
required medical attention (thus entailing workers’ compensation
medical benefits), it would not have been submitted to the
safety committee in the first instance.
Thus, the jury was not
required to believe that Mullen was fired pursuant to the
neutral safety policy that Griffin had claimed to have applied
consistently.
Sufficient evidence existed for the jury to believe
that Mullen might have been terminated in retaliation for
seeking workers’ compensation benefits and for it also to
conclude that Griffin’s safety violation defense might have been
a mere pretext.
See, Kentucky Department of Corrections v.
McCullough, 123 S.W.3d 130 (Ky. 2003).
We note the obvious and
coincidental closeness in time between the firing and the claim
for benefits.
Also of significance is Stewart’s initial
reluctance to fire Mullen until Stanberry directed otherwise.
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We find no error in the court’s refusal to enter a directed
verdict or to grant a JNOV.
Griffin next argues that the trial court erred in its
attempt to answer the jury’s question about the “but for”
language in the instruction.
Acknowledging that the court was
“well-intentioned,” Griffin contends that it nonetheless
“actually added to the jury’s confusion of what Mullen’s burden
of proof was in the matter.”
(Appellant’s brief at pp. 21-22.)
We have reviewed the court’s response to the jury’s
inquiry and have not discovered any contemporaneous objection
made by Griffin to any statement made by the trial court.
Thus,
this issue has not been properly preserved for our review.
However, regardless of the preservation problem, we find nothing
inappropriate in the court’s exchange with the jurors.
The
court essentially read and re-read the instruction to the jury.
It invited the jury to read the verdict form on the page
following the “but for” instruction.
The judge suggested to the
jurors that they could either believe or not believe (the two
choices outlined on the verdict form) that Griffin’s real motive
in firing Mullen was that he had filed a workers’ compensation
claim.
There was no impact on the burden of proof or any
prejudice caused to either party by the court’s brief, cautious
remarks to the jurors.
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Griffin last argues that the court erred in its award
of attorney’s fees.
attorney’s fees.
KRS 342.197(3) authorizes an award of
When a statute authorizes the payment of
attorney’s fees, our standard of review is to determine whether
the court abused its discretion.
877, 883 (Ky.App. 2002).
King v. Grecco, 111 S.W.3d
The only requirement for a court is
that the award be “reasonable.”
Id.
In his motion for attorney’s fees, Mullen’s attorney
sought an award equal to 40% of the jury’s award -- an amount
consistent with his contingency fee contract with Mullen.
In
the alternative, he asked for an award based on his time
(estimated at 253 hours) multiplied by $125, his standard hourly
fee.
He stated that the case involved “difficult questions” and
required “the service of an attorney experienced in handling
these type[s] of claims.”
He noted that he took a substantial
risk in representing Mullen on a contingent fee contract because
the evidence was entirely circumstantial in nature.
In calculating its award, the trial court opted to
multiply the hours of representation by $125.
Griffin complains
that the award is an abuse of discretion because it is based on
an estimate of time that was reconstructed by Mullen’s attorney
after the trial rather than on contemporaneous records
maintained throughout the pendency of the case.
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Thus, Griffin
argues that it was impossible for the court to arrive at a
reasonable award.
We do not agree that the failure to maintain detailed
contemporaneous records either prevents an award of attorney’s
fees or serves to render the award unreasonable.
The actual
time that an attorney spends in representing a client is only
one of many factors to be considered -- with numerous other
elements to be evaluated in arriving at a just reward.
Those
other factors were set forth in the venerable case of Boden v.
Boden, 268 S.W.2d 632, 633 (Ky. 1954):
An attorney fee cannot be fixed with
arithmetical accuracy. The factors to be
considered are well summarized in Axton v.
Vance, 207 Ky. 580, 269 S.W. 534. Briefly
stated, they are:
(a) Amount and character of services
rendered.
(b)
Labor, time, and trouble involved.
(c) Nature and importance of the litigation
or business in which the services were
rendered.
(d)
Responsibility imposed.
(e) The amount of money or the value of
property affected by the controversy, or
involved in the employment.
(f) Skill and experience called for in the
performance of the services.
(g) The professional character and standing
of the attorneys.
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(h)
The results secured.
The court was in the best position to observe Mullen’s
attorney, to assess his competency, and to determine the value
of his services to Mullen.
Our review of the record reveals
that Mullen’s counsel was required to undertake considerable
pre-trial preparation, including attendance and preparation for
numerous depositions; to prepare for and to attend a two-day
jury trial; and to expend considerable time and effort in
defending Griffin’s post-trial motions.
Considering the
pertinent factors, we find no abuse of discretion in the award
of $31,625 for his attorney’s fees.
In his cross-appeal, Mullen argues that the trial
court erred in failing to instruct the jury on punitive damages.
The court did not believe there was a sufficient amount of clear
and convincing evidence of wrongdoing to justify the imposition
of punitive damages on Griffin.
We agree with the court -- but
for a different reason.
KRS 342.197(1) and (3) provide:
(1)
No employee shall be harassed, coerced,
discharged, or discriminated against in
any manner whatsoever for filing and
pursuing a lawful claim under this
chapter[;]
. . . .
(3)
Any individual injured by any act in
violation of the provisions of
subsection (1) or (2) of this section
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shall have a civil cause of action in
Circuit Court to enjoin further
violations, and to recover the actual
damages sustained by him, together with
the costs of the law suit, including a
reasonable fee for his attorney of
record. (Emphasis added.)
In McCullough, supra, the Supreme Court of Kentucky
held that punitive damages are not an available remedy under KRS
344.450, the Kentucky Civil Rights Act.
Like KRS 342.197(3),
KRS 344.450 provides that a victim of illegal employment
discrimination can seek redress in circuit court and “recover
the actual damages sustained, together with the costs of the law
suit.”
The Supreme Court held that the term “actual damages”
means “compensatory damages” only and does not include punitive
damages.
Id. at 138.
The Court further held that neither KRS
411.184 nor KRS 411.186 (the punitive damages statutes relied
upon by Mullen) serves to “make punitive damages available under
KRS 344.450.”
Id. at 140.
In light of the fact that KRS
342.197(1) and (3) utilizes language identical to KRS 344.450,
as well as the similarity in their purposes and the wrongs to be
remedied, we believe the trial court was correct in refusing to
allow the jury to consider the issue of punitive damages -- even
though its reasoning was more generalized rather than based on
this statutory analysis.
Mullen last contends that the trial court erred in
reducing the jury’s award of damages by the amounts that he
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received in state unemployment benefits.
However, Mullen could
not be prejudiced by the alleged error as he would have been
required to reimburse the state for the duplicate wages if the
reduction had not been made.
See, KRS 341.415.
Regardless of
the statutory repayment provisions, the reduction in the verdict
(giving credit to Griffin for unemployment benefits) prevented
double recovery for the same injury (lost wages).
error.
We find no
See, Simpson County Steeplechase Association v. Roberts,
898 S.W.2d 523 (Ky.App. 1995).
We affirm the judgment of the Logan Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT:
David C. Nalley
Lynda M. Hils
Covington, Kentucky
Michael D. Lindsey
Bowling Green, Kentucky
ORAL ARGUMENT FOR
APPELLANT/CROSS-APPELLEE:
Lynda M. Hils
Covington, Kentucky
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