By Brad Cave

The series of large verdicts for Wyoming employees seems to be marching forward.  The most recent example occurred recently when a Cheyenne jury awarded over $740,000 to a trona miner after deciding that he was fired because he took FMLA leave.  With liquidated damages available in an FMLA case, the Wyoming court entered judgment in an amount in excess of $1.48 million in favor of the employee. This case stands as yet another example about the importance of supervisor training and careful, well-documented and consistent decision making. 

Long Term Employee With A Pain in the Neck.  We first told you about this case in March of this year, when the Tenth Circuit Court of Appeals sent the case back to Wyoming for trial after reversing the trial court’s dismissal of the case.  (Safety Violation or Too Much Intermittent FMLA Leave?). Here is a short recap of the facts. 

Steven Smothers had been employed by Solvay Chemical for 18 years when his employment was terminated.  Smothers had experienced back problems since 1994 resulting in three surgeries on his neck and other medical procedures, and an extended course of medical treatment by specialists.  Over the years, Smothers took intermittent FMLA leave for his medical appointments and when he was unable to work due to the pain.  The amount of FMLA leave he took did not go unnoticed.  He was pressured by the production superintendent to change shifts to lessen the additional overtime cost caused by his absences, but such a change would have cost him about $7,000 per year in shift differential pay.   Solvay also gave Smothers a negative rating on his performance evaluation because of his absences, and he was told that he was rejected for a promotion because of the leave. 

Smothers’ Safety Rule Violation.    In August 2008, Smothers and his coworkers were performing an acid wash, which Solvay did every six months to clean residual trona out of the equipment.   When Smothers noticed that a damaged spool piece had caused a leak, he began to fix it without obtaining a line break permit which was required by Solvay safety rules.  Smothers and a co-worker, Mahaffey, argued about whether the permit was necessary, and after Smothers removed the spool piece without first getting the permit, Mahaffey immediately reported Smothers’ actions to a supervisor. 

Solvay terminated Smothers’ employment on August 28, 2008, based on a joint decision of six Solvay managers.   Five of the six decision makers testified that the argument between Smothers and Mahaffey weighed heavily in the group’s decision to fire Smothers. Although the trial court originally dismissed the case, the Tenth Circuit believed that Smothers had presented enough evidence to create doubt about the real reasons for Smothers’ termination.   So, the case was sent back to the trial court for trial. 

What’s the Real Reason for Smothers’ termination? Like all retaliation cases, the jury in this trial was asked to decide whether Smothers was fired for a safety rule violation, as the employer contended, or because his employer retaliated against him for using intermittent FMLA leave or discriminated against him because of his disability.   We don’t have a transcript of the trial, so we cannot tell you what evidence the jury heard or what facts persuaded the jury.  We do know that the Tenth Circuit reasoned that the jury could disbelieve Solvay’s reasons because: 

• Supervisors criticized Smothers informally and in his performance evaluation for taking FMLA-protected leave, and rejected him for a promotion because of his time off;
• Solvay did not give Smothers an opportunity to describe or explain his side of the argument with Mahaffey, even though the argument was a central reason for the decision to terminate Smothers’ employment;
• Other Solvay employees who committed safety rule violations were not terminated. 

And the Jury Returns.The jury found in favor of Smothers on his FMLA claim, and awarded Smothers the amount of $740,535 for his lost wages and benefits from the date of his termination, August 27, 2008, through the date of trial.  But the potential damages don’t stop with the lost wages.  Under the FMLA, the successful employee may be entitled to an additional amount equivalent to the jury’s award for liquidated damages – in other words, a penalty against the employer for the violation.  As a result, the court has entered judgment against Solvay in the total amount of $1,481,070, twice the amount of the jury’s verdict, plus interest since the date of termination.  The trial court declined to award Smothers any future lost wages.  However, Smothers is entitled to an additional judgment for his reasonable attorneys’ fees and costs, which could add hundreds of thousands of dollars to the total. 

Bottom Line.  Regardless of the final number after adding prejudgment interest and attorneys’ fees, this is one of the largest judgments ever entered against a Wyoming employer.  We cannot speculate about what evidence led the jury to its verdict, but we can share some lessons, with the benefit of twenty-twenty hindsight, that will help any employer avoid this kind of result: 

• Managers and supervisors must be trained and committed to the fact that taking FMLA leave is protected by federal law, and must not be the reason for formal criticism, denied opportunities, or informal complaining.  FMLA-protected leave cannot be held against an employee for any reason whatsoever.  Any comment or suggestion to the contrary can be used as evidence of pretext.
• Investigations must be thorough and even-handed.  While we don’t know all the evidence in this case, the jury may have heard that Solvay spent much more time asking Mahaffey about the argument with Smothers, while never asking Smothers for his side of the argument.  Everybody should get the same opportunity to tell their side of the story.   An inadequate investigation can be used as evidence of pretext.
• Employees must be treated consistently.  Smothers had evidence that other Solvay employees intentionally violated safety rules without being terminated.  Employers need to mete out comparable discipline for comparable violations, or have a compelling reason why an employee gets tougher punishment.
• Employers must respect long years of service.  Of course, keeping a job for eighteen years does nothing to technically change the legal relationship or create any new rights or protection for the employee.  But, after that length of time with a good performance record, it becomes difficult for a jury to believe that termination is an appropriate response for one incident. 

Wyoming juries have delivered substantial employee verdicts over the last few years.  Employers should pay attention. 

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