Abels v. Renfro Corp. , 108 N.C. App. 135 ( 1992 )

423 S.E.2d 479 (1992) 108 N.C. App. 135

Virginia P. ABELS, Plaintiff, Appellee,
v.
RENFRO CORPORATION, Defendant-Appellant.

No. 9117SC839.

Court of Appeals of North Carolina.

December 1, 1992.

Franklin Smith and Brian K. Flatley, Elkin, for plaintiff-appellee.

Constangy, Brooks & Smith, by W.R. Loftis, Jr. and Robin E. Shea, Winston-Salem, for defendant-appellant.

EAGLES, Judge.

Defendant brings forth six assignments of error. After a careful examination of the record before us, we affirm.

I.

In its first assignment of error, defendant argues that the trial court erred by excluding the Industrial Commission's findings that plaintiff's alleged injuries were not compensable. Defendant contends that the trial court should have admitted these findings based on the principles of res judicata. We disagree.

Regarding the application of the doctrine of res judicata, our Supreme Court has stated:

As we recently noted in Duke 1988 [State ex rel. Utilities Commission v. Public Staff, 322 N.C. 689, 370 S.E.2d 567 (1988)]:

The doctrine of res judicata treats a final judgment as the full measure of relief to be accorded between the same parties on the same "claim" or "cause of action." C. Wright, Federal Practice and Procedure, § 4402 (1969). "The essential elements of res judicata are: (1) a final judgment on the merits in an earlier suit, (2) an identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or their privies in the two suits." Hogan v. Cone Mills Corporation, 315 N.C. 127, 135, 337 S.E.2d 477, 482 (1985).

Duke 1988, 322 N.C. at 692, 370 S.E.2d at 569; see, e.g., In re Trucking Co., 285 N.C. 552, 560, 206 S.E.2d 172, 177-78 (1974). More specifically, in addressing the issue of whether a Commission order can be deemed res judicata this Court has held that "only specific questions actually heard and finally determined by the Commission in its judicial character are res judicata, and then only as to the parties to the hearing." Utilities Commission v. Area Development, Inc., 257 N.C. 560, 570, 126 S.E.2d 325, 333 (1962) (emphasis added).

State ex rel. Utilities Commission v. Thornburg, 325 N.C. 463, 468, 385 S.E.2d 451, 453-54 (1989).

Here, defendant's res judicata arguments fail because this is a claim of retaliatory discharge under G.S. § 97-6.1 and is not the same cause of action that plaintiff brought before the Industrial Commission. A different set of rights was determined in each forum. "North Carolina law has long prohibited the use of a previous finding of a court as evidence of the fact found in another tribunal. Masters v. Dunstan, 256 N.C. 520, 124 S.E.2d 574 (1962)." Reliable Properties, Inc. v. McAllister, 77 N.C.App. 783, 787, 336 S.E.2d 108, 110 (1985), disc. review denied, 316 N.C. 379, 342 S.E.2d 897 (1986). In Masters, 256 N.C. at 524, 124 S.E.2d at 576-77, our Supreme Court held that:

An estoppel by judgment arises when there has been a final judgment or decree, necessarily determining a fact, question, or right in issue, rendered by a court of record and of competent jurisdiction, and there is a later suit involving an issue as to the identical fact, question or right theretofore determined, and involving identical parties or parties in privity with a party or parties to the prior suit. Cannon v. Cannon, 223 N.C. 664, 28 S.E.2d 240 [1943]; Distributing Co. v. Carraway, 196 N.C. 58, 144 S.E. 535 [1928].

The purpose of the Industrial Commission hearing is to determine whether the employee has suffered an injury for which he or she is entitled to receive compensation under the Workers' Compensation Act. See Hanks v. Utilities Co., 210 N.C. 312, 186 S.E. 252 (1936); Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477 (1985); G.S. § 97-77; G.S. § 97-91. An employee's G.S. § 97-6.1 civil case is brought independently of the Industrial Commission hearing in order to protect the employee's right to file a workers' compensation claim before the Industrial Commission, findings regarding the employee's alleged injury. The public policy behind G.S. § 97-6.1 is to promote an open environment in which employees can pursue their remedies under the Workers' Compensation Act without the fear of retaliation from their employers. See Wright v. Fiber Industries, Inc., 60 N.C.App. 486, 299 S.E.2d 284 (1983); Henderson v. Traditional Log Homes, Inc., 70 N.C.App. 303, 319 S.E.2d 290, disc. review denied, 312 N.C. 622, 323 S.E.2d 923 (1984).

II.

In its second assignment of error, defendant contends that the trial court erred by excluding defendant's evidence of similarly situated employees. One set of employees included those who were discharged for the poor quality of their work. Another set of employees included those who returned to their jobs without incident after filing workers' compensation claims. Defendant argues that the exclusion of this evidence was reversible error. We disagree.

Defendant bases its argument on the manner in which "disparate treatment" employment discrimination cases are litigated under federal law. Defendant asserts in its brief that "[a] policy that is applied equally to all employees—even an unfair policy—does not constitute unlawful discrimination." In this regard, defendant argues that "[a]n action for retaliatory discharge [under G.S. § 97-6.1] is analogous to an action for employment discrimination under federal law." We disagree.

Defendant appears to argue that an employer who treats all employees alike could potentially discharge all employees who file workers' compensation claims and be free of the sanctions of the Workers' Compensation Act. Defendant's interpretation would circumvent the intent of the legislature and must not prevail.

Defendant's reasoning is inconsistent with the legislature's intent in creating G.S. § 97-6.1 and with the overall goals of the Workers' Compensation Act. In Wright, 60 N.C.App. at 491, 299 S.E.2d at 287, this Court interpreted the legislature's intent in enacting G.S. § 97-6.1 as follows:

Clearly, G.S. 97-6.1 was intended to prevent employers from firing or demoting employees in retaliation for pursuing their remedies under the Workers' Compensation Act. If G.S. 97-6.1 were limited only to retaliatory acts which occurred after the employee filed his claim, an employer could easily avoid the statute by firing the injured employee before he filed. We do not think the legislature intended the statute to be so easily circumvented.

The courts of this State have recognized that the Workers' Compensation Act should be liberally construed so that benefits will not be denied by technical, narrow, or strict interpretation. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281 (1972); Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (1930). Liberally construed, the statute encompasses acts by employers intending to prevent employees from exercising their rights under the Workers' Compensation Act.

This assignment of error fails.

III.

In its third assignment of error, defendant argues that the trial court should not have submitted the issue of emotional distress damages to the jury, because this is not a form of "reasonable damages" that a discharged employee may recover under G.S. § 97-6.1(b). We disagree.

Initially, we note that in Johnson v. Ruark Obstetrics, 327 N.C. 283, 296-97, 395 S.E.2d 85, 92-93, reh'g denied, 327 N.C. 644, 399 S.E.2d 133 (1990), our Supreme Court held that emotional distress damages may be based upon a claim for breach of contract or tort. G.S. § 97-6.1(b) provides that, "[a]ny employer who violates any provision of this section shall be liable in a civil action for reasonable damages suffered by an employee as a result of the violation ..." (emphasis added). The phrase "suffered by an employee," found in G.S. § 97-6.1(b), has been interpreted by this Court according to its plain meaning. Buie v. Daniel International, 56 N.C.App. 445, 447, 289 S.E.2d 118, 119, disc. review denied, 305 N.C. 759, 292 S.E.2d 574 (1982) ("Punitive damages, by their very nature, are not damages ``suffered' by anyone. Rather, they are damages awarded to punish a wrongdoer, over and above the amount required to compensate for the injury."). Unlike the punitive damages sought by the plaintiff in Buie, emotional distress damages are a form of damages "suffered by an employee" and accordingly are recoverable as a form of "reasonable damages" in a civil action brought by an employee under G.S. § 97-6.1. See also Brown v. Burlington Industries, Inc., 93 N.C.App. 431, 434-35, 378 S.E.2d 232, 234 (1989), review dismissed, 326 N.C. 356, 388 S.E.2d 769 (1990); Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 488-90, 340 S.E.2d 116, 120-21, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986).

IV.

In its next two assignments of error, defendant argues that the trial court erred by not granting its motion for judgment notwithstanding the verdict, or in the alternative, its motion for new trial. Defendant alleges that there was insufficient evidence to support the verdict. We disagree.

Upon review of a motion for judgment notwithstanding the verdict, "[t]he trial court must consider all the evidence in the light most favorable to the non-movant and must resolve in favor of the non-movant contradictions, conflicts and inconsistencies in the evidence." Williams v. Randolph, 94 N.C.App. 413, 418, 380 S.E.2d 553, 556, disc. review denied, 325 N.C. 437, 384 S.E.2d 547 (1989) (citations omitted). Plaintiff's recovery was based on G.S. § 97-6.1, which provides in pertinent part:

(a) No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the North Carolina Workers' Compensation Act, or has testified or is about to testify in any such proceeding.

To recover under the statute, plaintiff must show that her discharge was caused by her good faith institution of the workers' compensation proceedings or by her testimony or her anticipated testimony in those proceedings. Hull v. Floyd S. Pike Electrical Contractor, 64 N.C.App. 379, 307 S.E.2d 404 (1983).

Plaintiff provided sufficient evidence at trial to withstand the judgment n.o.v. motion. At trial, plaintiff introduced evidence of: (1) the events causing her injuries; (2) the injuries themselves; (3) the treatment she received for each of the injuries; and (4) her filing the workers' compensation claims based upon those injuries. Additionally, plaintiff introduced "quality lists" created weekly by the defendant. These lists ranked each employee according to the percentage of defects that existed in each employee's work. These lists demonstrated that the quality of plaintiff's work was at or near the best during July 1987, the month following plaintiff's second injury.

Defendant contends that plaintiff's discharge was not retaliatory because it has a "neutral" employee discharge policy, based upon an employee's continuous absence from work for more than six months. Here, plaintiff requested only a one month leave of absence at the time she was discharged. Plaintiff presented a witness, Dr. Joseph Jackson, who testified that "there was no reason to think that she [plaintiff] wouldn't be able to at least make an attempt to resume her normal employment" after a one month leave of absence. Accordingly, we find no error in the trial court's denial of defendant's motions as there was sufficient evidence to support the jury's verdict.

As to defendant's motion for new trial, we find that the trial court correctly denied the motion. "An appellate court's review of a trial judge's discretionary ruling denying a motion to set aside a verdict and order a new trial is limited to a determination of whether the record clearly demonstrates a manifest abuse of discretion by the trial judge. Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982)." Pittman v. Nationwide Mutual Fire Ins. Co., 79 N.C.App. 431, 434-35, 339 S.E.2d 441, 444, disc. review denied, 316 N.C. 733, 345 S.E.2d 391 (1986). The record here does not demonstrate an abuse of discretion by the trial court.

V.

Finally, defendant contends that the trial court erred by denying defendant's motion, filed approximately six weeks after trial, to compel plaintiff to undergo an independent medical examination, the purpose of which would be to determine whether she was capable of performing her duties as a knitter. We disagree.

G.S. § 97-6.1(b) expressly provides reinstatement as a remedy for a successful retaliatory discharge claimant. "[A]n employee discharged or demoted in violation of this section shall be entitled to be reinstated to his [or her] former position." Id. During pretrial discovery, defendant had the right to compel plaintiff to undergo an independent medical examination under Rule 35 of the North Carolina Rules of Civil Procedure. G.S. § 1A-1, Rule 35. Knowing the possible consequences of G.S. § 97-6.1 if plaintiff was successful, defendant chose not to exercise that right. Accordingly, we find no error in the trial court's refusal to order an independent medical examination of plaintiff.

VI.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

JOHNSON and PARKER, JJ., concur.