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SUPERINTENDENT’S WRONGFUL DISCHARGE, FMLA RETALIATION CLAIMS VALID

Posted by Kashif Haque | Nov 23, 2016 | 0 Comments

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On November 14th, the United States District Court for the Southern District of Ohio Eastern Division granted and dismissed portions of the Defendant's (CB&I Constructors) Motion for Summary Judgement, which aimed to throw out certain claims alleged by the Plaintiff (Lightner). The Defendants wished to dismiss his assertions of FMLA retaliation, wrongful discharge, and FMLA interference. Only the latter ended up being dismissed.

Evan J. Lightner was employed as a Site Superintendent by CB&I Constructors from July 2009, through June 2014. During most of that period, he was considered an exemplary employee, having received positive reviews of “meeting or exceeding expectations” annually. His job as a Site Superintendent was to ensure OSHA (Occupational Health and Safety Administration) compliance, as well as supervising solid waste and landfill development projects. Lightner had a great amount of experience in the field, having worked for years prior in similar supervisory positions and receiving special training/certification from OSHA.

Lightner was dealt a devastating blow when his wife was diagnosed with cancer in August 2011. His then supervisor and Operations Manager Mike Mehalic told him that the employers would be “more than happy” to help him care for his wife, and helped Lightner reach out to Human Resources. He was granted intermittent FMLA leave when needed, and stated he was “very happy” with the support he received from the company.

Then, things seemingly began to change in 2012 when Greg Cooper replaced Mehalic as the Operations Manager. It wasn't until July or August of 2013 however that the situation started taking a turn for the worst. Lightner brought unsafe situations he had noticed to the attention of Cooper and another supervisor that acted as the Project Manager in the Solid Waste Group, Josh Broggi. Lightner stated that he noticed unsafe dump truck operations, as well as observing workers that were “unqualified and untrained” welding pipes. Despite his concern, Cooper and Broggi assured Lightner that the workers had enough prior experience to make up for their lack of formal training and certification.

In October 2013, Lightner and his co-workers began working on a project in Miami, Florida. Upon arrival at the site, Lightner noticed the same aforementioned “untrained and uncertified” employees completing welding tasks. Once again, he expressed his concerns about this to Broggi. Both Cooper and Broggi responded by telling Lightner that it was “too costly” to have the employees trained and certified. Lightner persevered in attempting to remedy the problems, having telephone and in-person conversations on the subject with the Division Safety Manager Greg McElroy. This supervisor assured Lightner that he had discussed the matter with Broggi and Cooper, and promised to have the employees appropriately trained “in the very near future”. However, that never happened.

Not only were the employees not trained, but their performance actually seemed to get worse as time went on. The environment became so dangerous in the eyes of Lightner that he believed the employees should either be dismissed, or the site should have been shut down entirely. Yet again, Lightner made desperate calls to Cooper and others. Cooper did fly to Miami in order to observe the situation for himself. Despite having observed several concerning things, such as employees not being able to properly operate an “off-road dump truck without causing damage”, he told Lightner that it would “be easier to hire five of the untrained employees and get rid of [him]”.

Cooper also commented that the employees were the “best the company could afford and still turn an adequate profit.” The reason for Cooper's concern about profitability seems to stem from the fact that CB&I was in the process of acquiring another company at the time. This meant that, according to Cooper, they needed to “do whatever was possible” to ensure the transition period went smoothly. Apparently, this included not reporting safety incidents. Lightner's job became blatantly threatened as Cooper instructed him not to report a particular incident involving a bulldozer, or else “be the person that left before the other employees did”.

Similar incidents continued to occur, then in May 2014, Lightner noticed a lump in his neck which seemed to be growing rapidly in size. As his doctors advised, he underwent a procedure to remove the mass so a biopsy could be performed. The lump turned out to be benign, but due to the nature of the procedure, Lightner and Cooper discussed him taking 3-4 weeks off. The very next day, Cooper called Lightner and told him that he was likely to be “furloughed” due to various business reasons. On June 2nd 2014, this indeed came to fruition and Lightner was let go allegedly as part of a reduction in force.

Sources:

http://www.employmentlawdaily.com/index.php/news/reduction-of-one-suggested-supervisor-was-fired-for-reporting-unsafe-conditions-seeking-fmla-leave/

http://hr.cch.com/eld/LightnerCB&I111416.pdf

About the Author

Kashif Haque

Kashif Haque is a trial attorney and one of the founding attorneys of Aegis Law Firm. He served as the 2015 Chairman of the Orange County Bar Association—Labor and Employment Section. Mr. Haque has obtained millions of dollars on behalf of his clients through trial, arbitration and settlement. A...

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