— Archive for Narendra Ghosh

Court of Appeals Rejects REDA Claim by Pro Se Plaintiff

In Fatta v M & M Properties Management, Inc. the North Carolina Court of Appeals heard an appeal by a pro se plaintiff of the trial court’s granting of summary judgement.  Plaintiff worked for the company in one of their hotels as a property manager.  During Plaintiff’s training, he was injured while cleaning a room.  He reported the injury to his supervisor and said he would file workers’ compensation paperwork if the injury was more severe than a pulled muscle.  A day after he reported his injury to his supervisor, Plaintiff was given a first and final written warning; five days after the warning Plaintiff was terminated.  Plaintiff filed a Form 18 with the North Carolina Industrial Commission five days following his termination.

Plaintiff contends that the company violated the Retaliatory Employment Discrimination Act (REDA) by firing him while he was engaged in protected activity, namely threatening to file a workers’ compensation claim.  The Court of Appeals agreed that threatening to file a workers’ compensation claim is protected activity.  However, the Court affirmed the trial court’s order because Plaintiff could not show a causal relationship between his termination and threatening to file a claim.  Plaintiff argued that the close proximity in time between when he reported his injury and was terminated showed that Defendant had unfairly retaliated against him for threatening to file a workers’ compensation claim.  However the Court stated that the proximity of the date of injury to the termination date is not enough, standing alone, to show a causal connection.

Given the really close timing here, the Court’s decision seems incorrect.  But, it appears that because the plaintiff was not represented by an attorney, he did not develop the facts in his case as well as he could have. There well could have been more incriminating facts that were not put before the court.

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NC COA Addresses Exception to Workers’ Comp Preemption

In Trivette v. Yount the defendant, a middle school principle, had a fire extinguisher removed from a classroom after a student had removed the safety pin and discharged the extinguisher.  The fire extinguisher was brought to the front office to avoid any further incident.  The following day the defendant placed the fire extinguisher on or around the plaintiff”s desk in the front office.  The plaintiff alleged that he was joking around with the fire extinguisher and when asked to stop joking “before it went off” said to the plaintiff, “Oh, you’re being such a baby, nothing is going to happen.”  The fire extinguisher discharged and sprayed the plaintiff’s body and face aggravating her preexisting neuro-muscular condition and causing extensive injury.

At issue in this case is the plaintiff’s attempt to seek damages from the defendant directly in a personal injury action under the Pleasants exception.  The defendant contends that he was Ms. Trivette’s employer and thus her relief is limited only to the Workers’ Compensation Act.  The Court of Appeals affirmed the trial court’s decision, stating that though the defendant was Ms. Trivette’s immediate supervisor and an administrator, he is not given the authority to “employ” any person as outlined in N.C. Gen. Stat. §115C-288.  Therefore, the defendant was a co-employee and not the employer.  The Court also found sufficient evidence that he acted in a willful, wanton and recklessly negligent manner because he knew that there was a risk of the extinguisher accidentally discharging and was asked not to joke around with it, but continued to do so causing harm to the plaintiff.

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NC COA Decides Handful of Workers’ Comp Cases

Late last month, the North Carolina Court of Appeals published their opinions in the following workers’ compensation cases:

Archie v. Kirk:  The plaintiff worked for Edward Kirk changing billboard advertisements.  Kirk provided necessary tools and protection gear to the plaintiff.  In 2006, on a larger job for which Kirk hired an additional two workers, the plaintiff was electrocuted and burnt by a “power pole” which was near the billboard.  On appeal from the Industrial Commission , the defendants claimed that the plaintiff was not an employee and that Kirk did not have three or more regular employees working on the day the plaintiff was injured.  The Court of Appeals affirmed the Commission’s determinations that there was an employer-employee relationship, the plaintiff was not an independent contractor, and the plaintiff was entitled to medical and disability benefits.

Chandler v. Atlantic Scrap & Processing:  The plaintiff cleaned buildings owned by Atlantic Scrap.  She was walking down a flight of concrete stairs and fell backwards striking her head, neck and shoulder.  She suffered a traumatic brain injury which caused severely diminished cognitive functioning.  Her husband had to provide attendant care services because she needed care 24-7 and defendants had denied in-home attendant care services.  On appeal, the Court of Appeals held that the Industrial Commission had to award interest to Mr. Chandler for the attendant care services he provided because such services constitute “medical compensation.”  The Court also rejected all of defendant’s issues on appeal, including the well-worn argument that attendant care awards require pre-authorization from the Commission.

Malloy v. Davis Mechanical Inc.: The defendant appealed the NC Industrial Commission’s determination that the mediated settlement agreement was not fair and just and thus unenforceable.  The Court held that the Commission had erred in reviewing new medical bills which were not available at the time of the mediation and also erred when they considered the plaintiff’s child support lien.  The Court remanded back to the Commission to reconsider whether the mediated settlement agreement was fair and just excluding the aforementioned materials from consideration.

Shaw v. U.S. Airways: Mr. Curry Shaw sustained a lower back injury in 2000 when lifting luggage.  In 2008 Mr. Shaw died, and “the Commission concluded that Curry Shaw died of methadone toxicity – a direct result of his methadone use and a proximate result of his original compensable back injury.”  Defendants appealed, contending that Mr. Shaw’s death was not proximately related to his compensable work injury.  Given that Mr. Curry was taking Methadone because of his workplace injury, the Court stated that “to assert that Curry Shaw’s death was solely the result of a non-work related liver disease is an untenable argument”  and rejected Defendant’s contention.

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Congress Extends Unemployment Benefits for Two Months

Shortly before Christmas, House Republicans finally gave in and sensibly agreed to the two-month extension for extended unemployment benefits.  When Congress returns after recess, debate will resume on whether to further continue the vitally needed unemployment insurance programs.  For more information on North Carolina’s Extended and Emergency Unemployment benefits, see the Division of Employment Security’s site, here.

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NC COA Examines Public Duty Doctrine

The North Carolina Court of Appeals reversed the decision of the North Carolina Industrial Commission in Ray v. NC Department of Transportation.  The case involved the death of a motorist and her passengers in 2002 when an eroded section of pavement caused her vehicle to go off the roadway, she corrected, and hit an oncoming car head on.  The plaintiff alleged that that NC DOT was negligent in maintaining the roadway and not repairing the eroded section which they knew was dangerous or should have known was a dangerous to motorists.  The Commission dismissed the case based on the public duty doctrine which can be used as a defense by the State of North Carolina from certain tort claims.  Reversing, the Court of Appeals concluded:

“ This case does not involve a failure to inspect or to police, but a failure to repair a defective section of roadway. There is no “hazard created by others” or important discretionary decision which requires the government to be protected under the public duty doctrine.”

Burton Craige wrote an amicus brief on behalf of the North Carolina Advocates for Justice for this case.  The brief can be accessed here.

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Brief Filed for Rawls in Workers’ Compensation Appeal

In Rawls v. Yellow Transportation, the Industrial Commission concluded that plaintiff Veran Rawls suffered a compensable injury by accident in 2005 and has been totally disabled since that time.   Defendants appealed.  Hank Patterson and Narendra Ghosh, representing Mr. Rawls, filed this brief in the Court of Appeals.  Summary of the brief: Read more…

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Briefs in IBEW 289 Arbitration Case in Federal Court

In International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 289 v. Verizon South, Inc., the Union has filed suit in federal court (Middle District of North Carolina) to compel the company to engage in arbitration regarding the termination of an employee.  On behalf of the Union, Patterson Harkavy has filed this response brief and this reply brief.  Mike Okun and Narendra Ghosh are representing the Union.

This is a summary of the Union’s argument:  Because national labor policy strongly favors arbitration as the means for resolving labor disputes, courts must apply a presumption of arbitrability to collective bargaining agreements that contain arbitration provisions, and direct the parties to arbitrate unless the parties have expressly agreed not to arbitrate a particular matter.  Any doubt or ambiguity regarding arbitrability is to be resolved in favor of arbitration. 

Here, the parties’ collective bargaining agreement and separate settlement agreement for grievant Brian Pollard require arbitration of the grievance regarding Pollard’s termination because Pollard was not a “new employee” when he was rehired in 2010.  Moreover, to the extent the settlement agreement is ambiguous about permitting Pollard’s grievance to be arbitrated, that ambiguity must be construed in favor of arbitration.  Therefore, defendant’s motion to dismiss should be denied, and plaintiff’s motion to compel arbitration – filed this same day – should be granted.

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ATU 1328 Prevails in Arbitration Case in Federal Court

In, Cape Fear Public Transit Authority v. Amalgamated Transit Union (ATU) Local 1328, the Wilmington transit authority is challenging a labor arbitration in favor of the Union, which ordered a terminated employee be put back to work.  This case is before federal Judge Boyle in the Eastern District of North Carolina.  Yesterday, Judge Boyle ruled for the Union, concluding that there were no grounds to reverse the arbitration decision.  Finding the city’s lawsuit to be “without justification,” Judge Boyle also awarded the Union its attorneys’ fees for defending this case.  Here is the opinion.  Mike Okun and Narendra Ghosh are representing the Union.

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Fourth Circuit Rejects FLSA Retaliation Claim for Job Applicant

The Fourth Circuit recently issued a troubling 2-1 decision in Dellinger v. Science Applications International Corp.  The majority (Judges Niemeyer and Keenan) held that under the anti-retaliation provision for the Fair Labor Standards Act (FLSA, the federal wage and hour law), a job applicant cannot sue an employer that refused to hire her solely because she had sued her former employer for wage and hour violations.  Although this conclusion seems contrary to the spirit of FLSA’s protections, the majority reasoned that FLSA only allows suits by an individual against their employer, not prospective employer.  The dissent by Judge King is much more persuasive, arguing that FLSA can be read to cover this situation and that such a reading is in keeping with the recognized need to eliminate retaliation against those who assert their rights under FLSA, Title VII, or other employment laws.

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Fourth Circuit Supports Sex Harassment and Retaliation Claims

The Fourth Circuit recently issued an excellent decision in Okoli v. City of Baltimore.  This case presents claims under Title VII action for sexual harassment and retaliation (termination) for reporting the harassment.  Amazingly, the trial court dismissed the case.  The Fourth Circuit reversed, concluding that the plaintiff’s allegations that her boss forcibly kissed her, fondled her leg, propositioned her, asked sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her are sufficient to support claims of hostile work environment, quid pro quo sex harassment, and retaliation.

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