North Carolina Lawyers Weekly
A legal wrangle between a NASCAR tire-changer and his former team remains under green flag conditions after a North Carolina business court judge ruled that the pit crew member could keep pressing forward with his suit for wrongful termination.
Murphy
Brandon Hopkins is suing the now-defunct Michael Waltrip Racing team, which fired him one day before he underwent a season-ending shoulder surgery. The suit also names Ty Norris, who was the team’s general manager.
Hopkins claims he injured his shoulder in October 2013 after being struck by his team’s car during a race. (The team contends the injury occurred outside of work.) After the injury worsened, the team opened a workers’ compensation claim for Hopkins in January 2014.
An MRI two months later revealed that Hopkins had a torn labrum, which doctors advised he needed surgery to repair. Hopkins tried to tough it out until the end of the 2014 season, and claims he was pressured to do so, but after a particularly painful race that July, he demanded to undergo the surgery as soon as possible, potentially taking him off pit road for the rest of the season.
The day before the surgery date, Hopkins was sacked. He’s now bringing claims against the team for wrongful discharge in violation of public policy and violations of the Americans with Disabilities Act , Family and Medical Leave Act and North Carolina Retaliatory Employment Discrimination Act, among other claims.
The racing team contends that Hopkins was fired for pilfering one of the specially designed pit guns that the team was developing, and that the termination was unrelated to Hopkins’ injury. It brought several counterclaims against Hopkins, including breach of contract, conversion, and misappropriation of trade secrets related to the pit gun.
Herrmann
On May 31, North Carolina Business Court Judge Louis Bledsoe ruled that the bulk of Hopkins’ claims, and the racing team’s counterclaims, could proceed to a jury trial.
To prevail on claims under the ADA, FMLA or REDA, a plaintiff must start by presenting evidence that, at first glance, would show that he engaged in protected activity under the law and suffered an adverse action as a result. Once that hurdle is cleared, the employer must show a legitimate, nondiscriminatory reason for the action. If the employer can do that, then the burden shifts back to the employee to show that the ostensible reason for the action was merely a pretext to engage in retaliation.
Hopkins argued that the timing of his firing, one day before his surgery, was sufficient to justify a reasonable conclusion that the expedited surgery was the reason for his dismissal. The racing team disagreed, arguing that Hopkins’ workers’ comp claim had been filed many months before he was fired.
Bledsoe ruled that Hopkins’ suits could move forward, finding that his request for a new surgery date qualified as a protected activity that could be used to establish the necessary temporal proximity.
In the context of REDA, this appears to be the first time a state court has weighed in on this question since North Carolina’s legislature expanded the law’s protections in 1991, although a federal court reached the same conclusion in 2004.
“The Court agrees that REDA ‘covers all aspects of a workers’ compensation proceeding’ because, when the General Assembly adopted the broad language of [REDA], it repealed the prior version of the statute, which only prohibited retaliation against employees for instituting worker’s compensation claims or testifying in proceedings,” Bledsoe wrote. “Under the broad scope of REDA, Hopkins’s request for a new surgery date qualifies as protected activity. Thus, the seven days between Hopkins’s request and his termination is sufficient [to sustain his claim].”
Bledsoe’s ruling means that, absent a settlement, ultimately it will be up to a jury to decide whose explanation for the firing—and the disappearance of the pit gun—is more credible.
Josh Van Kampen, Sean Herrmann and Kevin Murphy of Van Kampen Law in Charlotte represent Hopkins. The attorneys said that they were prepared to offer evidence to show that the team’s retaliatory animus towards Hopkins began as soon as he began needing accommodations for his injury, and that under the law such requests should definitely qualify as protected activity.
“I think what this decision does is it brings the case law in line with the way the statute is written now,” Herrmann said. “When Brandon requested his surgery, that was protected activity under REDA.”
Van Kampen
Jon Carroll and Adam Ross of James, McElroy & Diehl in Charlotte represent Michael Waltrip Racing. Carroll said that his clients were disappointed by the ruling but are now gearing up for trial, and he contended that his clients had acted within the boundaries of the law.
“With respect to [the REDA issue], I think it is a broadening of REDA’s coverage and was not something that I saw in either the federal cases or the state cases that have been issued to date,” Carroll said.
The 69-page decision is Hopkins v. MWR Management Co. (Lawyers Weekly No. 020-052-17). The full text of the opinion is available online at nclawyersweekly.com.
Follow David Donovan on Twitter @NCLWDonovan
