STROUD, Judge.
Plaintiff filed a complaint alleging defendant terminated him in violation of the Retaliatory Employment Discrimination Act. The trial court granted defendant's motion for summary judgment, and plaintiff appeals. As we conclude that plaintiff has forecast a genuine issue as to a material fact, we reverse.
On 27 February 2009, plaintiff sued defendant alleging in pertinent part:
Plaintiff alleged defendant terminated him contrary to the Retaliatory Employment Discrimination Act ("REDA"). Plaintiff requested, inter alia, "his back pay losses, prejudgment interest on back pay losses, front pay losses, job benefits, wage increases and diminished retirement benefits, emotional distress damages, punitive damages, and compensatory damages[,]" and "[t]hat the Defendant be ordered to implement procedures and policies to prevent illegal discriminatory activities and that the Defendant is enjoined from committing further violations of the Retaliatory Employment Discrimination Act[.]"
On or about 20 November 2009, defendant filed an amended motion for summary judgment because "there [was] no genuine issue as to any material fact and that Central Station is entitled to judgment as a matter of law." On 11 December 2009, the trial court granted summary judgment in favor of defendant and dismissed all of plaintiff's claims with prejudice. Plaintiff appeals.
Plaintiff argues that "the trial court committed reversible error by dismissing this action and granting Defendant's Motion for Summary Judgment." (Original in all caps.) "Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and quotation marks omitted). "The evidence must be viewed in the light most favorable to the non-moving party." Wiley v. United Parcel Service, Inc., 164 N.C. App. 183, 186, 594 S.E.2d 809, 811 (2004).
N.C. Gen.Stat. § 95-241(a) provides in pertinent part that
N.C. Gen.Stat. § 95-241(a) (2007).
Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 691, 575 S.E.2d 46, 50 (2003) (citation and quotation marks omitted).
Wiley at 186-87, 594 S.E.2d at 811 (citations and quotation marks omitted).
Here, there is no dispute that plaintiff "exercised his rights" to file a worker's compensation claim and "that he suffered an adverse employment action" as he was terminated from employment. Id. at 186, 594 S.E.2d at 811. Thus, the only issue left in considering whether plaintiff properly brought a REDA claim is whether "the alleged retaliatory action was taken because. . . [plaintiff] exercised his rights" to file a worker's compensation claim. Id.
Ms. Lisa Hyatt, defendant's Chief Financial Officer, stated in her affidavit that "plaintiff had excessive absences from work, failed to follow company procedures including, but not limited to, driving a forklift without certification, preparing the wrong products for shipment to customers, not following instructions of the manager and engaging in insubordinate behavior." Ms. Hyatt stated that plaintiff "was terminated for not reporting to work and for excessive absenteeism."
However, Mr. Mike West, a former employee of defendant who worked as a shipping manager, filed an affidavit stating that plaintiff "was a very good employee and always on time." Mr. West claimed he only knew of one time when plaintiff was tardy and that even then plaintiff informed him beforehand. Mr. West asserted that plaintiff only missed work "due to an illness or injury" and that Lisa told him that they "need to get rid of James before he gets hurt again." In Mr. West's deposition he also stated that he was told "they needed to get rid of [plaintiff] before he cost the company a bunch of money and that [he] needed to start writing him up for whatever [he] could."
Mr. Derek Latham, also a former employee of defendant and plaintiff's former supervisor, testified in his deposition that defendant had never been absent without a doctor's note. Mr. Latham testified that he was present when plaintiff returned from his 5 November 2007 injury ("worker's compensation injury") and that Ms. Hyatt put plaintiff on ninety-days probation for plaintiff "not [to] get hurt[.]" Mr. Latham also testified that he believed plaintiff was fired "because he filed a health insurance claim[.]"
During plaintiff's deposition he stated that when he returned from his worker's compensation injury, Ms. Hyatt told him he hadn't "done nothing but cost the company money. Now [he's] a risk to that company[.]" Thus, defendant has presented evidence that plaintiff was terminated for excessive absences, but plaintiff has presented evidence that he was terminated due to his "health claim[;]" the conflicting evidence creates a question of material fact.
Plaintiff directs our attention to Tarrant v. Freeway Foods of Greensboro, Inc., wherein
Defendant states that Tarrant and this case are similar to the extent that employees alleged their employers told them they were costing the employer money but contends that the similarities end there. Defendant claims the "costs" statement made here is distinguishable from Tarrant because the statement was not made at the time defendant was being terminated; the basis for the statement was different as it involved plaintiff's absences and mistakes; defendant "never acknowledged" plaintiff "was a good worker[;]" and plaintiff was put on probation rather than terminated upon returning to work from his worker's compensation injury.
While we agree with defendant that there are factual differences between Tarrant and the present case, we do find the similar language used by the employers regarding "costs" compelling when considering this case. Here, the alleged "costs" statement was made when defendant returned to work from his worker's compensation injury, on 3 March 2008, but defendant was not terminated until 19 March 2008; accordingly, defendant was terminated from employment within three weeks of the statement being made. The fact that defendant did not terminate plaintiff until three weeks after making the "costs" statement does not resolve the factual issue as to whether plaintiff was terminated in violation of REDA. See generally Tarrant at 511, 593 S.E.2d at 813 ("[A] long interval between the filing of a workers' compensation claim and the termination of the employee could reveal that the two events were not causally related. However, such a concern does not arise where the employer openly admits that the firing was retaliatory. We believe that strictly requiring a close temporal connection would allow employers to circumvent the statute. By simply delaying the retaliatory firing for several months, an employer could prevent a REDA claim from ever going forward, even where there is direct evidence of a wrongful motive.").
Next, while defendant is correct that the "costs" statement could be interpreted as being based upon the cost of plaintiff's absences and mistakes, we must consider the evidence in the light most favorable to plaintiff. See Wiley at 186, 594 S.E.2d at 811. In this light, the "costs" statement could easily be interpreted as referring to the cost of plaintiff's worker's compensation claim, particularly as the statement was made on the very day that plaintiff returned to work from his worker's compensation injury.
Also, while defendant may have "never acknowledged . . . [plaintiff] was a good worker[,]" defendant does acknowledge that "the issue is not whether the appellant worked hard or was punctual; it is whether the termination was a result of the filing of the workers' comp claim." While plaintiff's work performance is relevant in the analysis of defendant's motive in terminating plaintiff's employment, evidence that plaintiff was a "bad" worker does not preclude the possibility that plaintiff's employment was terminated in violation of REDA. In addition, plaintiff has presented evidence from Mr. West that plaintiff "was a very good employee" and from Mr. Latham that plaintiff was never absent without a doctor's note.
Lastly, although defendant was put on probation instead of immediately being terminated upon his return to work from his worker's compensation injury, we again note that "strictly requiring a close temporal connection would allow employers to circumvent the statute. By simply delaying the retaliatory firing for several months, an employer could prevent a REDA claim from ever going forward, even where there is direct evidence of a wrongful motive." Tarrant at 511, 593 S.E.2d at 813. One method of "delaying the retaliatory firing" could be putting an employee on probation. Id.
Defendant contends that this case is "on point" with Salter. In Salter, on 2 June 1999, the plaintiff fell at work and broke her foot. 155 N.C.App. at 687, 575 S.E.2d at 47. The plaintiff alleged that her supervisor was
Id. at 687-88, 575 S.E.2d at 48. The letter essentially informed plaintiff that her leave due to her injury would be without pay and that she would be allowed to return to work if an appropriate position was available though one was not guaranteed; the letter also provided that a failure to follow the employer's "procedure" would result in "immediate dismissal." Id. at 688, 575 S.E.2d at 48. The plaintiff claimed that upon receiving the letter her supervisor informed her she must sign it or be terminated from employment. Id. Plaintiff filed suit, and defendant filed a motion for summary judgment which the trial court granted in defendant's favor. Id. at 689, 575 S.E.2d at 49. Plaintiff appealed because "the trial court erred in granting summary judgment to defendant because genuine issues of material fact existed as to whether defendant took retaliatory action against her because she filed a workers' compensation claim, in violation of REDA, N.C. Gen.Stat. § 95-240 et seq. (2001)." Id. at 690, 575 S.E.2d at 49-50. This Court determined that
Id. at 691-92, 575 S.E.2d at 50-51 (2003) (citation, quotation marks, and ellipses omitted).
Here, we do not believe Salter is "on point" with the present case. In Salter, the plaintiff returned to work from her worker's compensation injury and worked for two and one-half months. Id. at 687, 575 S.E.2d at 48. It was only after the Salter plaintiff's second non-worker's compensation injury that she received the letter. Id. at 687-88, 575 S.E.2d at 48. Here, however, plaintiff was allegedly told he had "done nothing except `cost the company money'" upon his return to work from his worker's compensation injury. In other words, in Salter, it appears that the plaintiff simply returned to work after her worker's compensation injury and proceeded to work for two and one-half months before she received the letter, see id., but here, plaintiff was told he "cost the company money" and placed on probation the very day he returned to work from his worker's compensation injury.
Finally, defendant spends a large portion of its brief addressing various statements by Mr. West, Mr. Latham, and plaintiff and how these statements are "speculation[.]" While defendant is correct in noting that more than speculation is required to create a genuine issue of material fact, Wiley at 187, 594 S.E.2d at 811, we do not believe that the
For the foregoing reasons, we reverse the trial court order granting summary judgment in favor of defendant.
REVERSED.
Chief Judge MARTIN and Judge STEPHENS concur.
