Court won’t overturn jury award for employee fired after reporting safety hazard

A Pennsylvania court has denied an employer’s motion to overturn a jury’s award of punitive damages to a former employee of an iron foundry company who claimed he was fired for reporting alleged risks to safety and health to the US Occupational Safety and Health Administration and ordered the company to reinstate the employee.

In April, a Pennsylvania jury awarded $40,000 for lost wages, pain and suffering, and punitive damages to Zachary Zettlemoyer, who was employed by Hamburg, Pa.-based Fairmount Foundry Inc., and complained several times of a roof leak in an area where he worked, which he considered a safety hazard because it leaked directly into an electrical box and created a slip hazard, according to court documents in Acosta v. Fairmount Foundry Inc.

In September 2015, Mr. Zettlemoyer filed an anonymous complaint with OSHA after the hazard had not been corrected, and the agency conducted an unannounced inspection the following month. Mr. Zettlemoyer was fired several days after the inspection and filed a whistleblower complaint with OSHA on Oct. 28, 2015, according to court documents. The agency’s whistleblower investigation determined that Fairmount Foundry terminated him in retaliation for engaging in an activity protected under section 11(c) of the Occupational Safety and Health Act. work, which prohibits certain acts of retaliation against employees.

Fairmount Foundry sought a post-verdict order quashing the jury’s award of punitive damages and a liability verdict, denying Mr. Zettlemoyer the injunction and equitable relief sought after trial and, in the alternative , a new trial due to the alleged error of failing to instruct the jury on use at will – a motion that was denied entirely by the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia.

“Even if we had given an at-will employment instruction explaining that Mr. Zettlemoyer could be terminated for any reason or no reason at all, Fairmount Foundry could not have terminated him for performing a protected activity,” said the judge. “Fairmount Foundry does not explain how an at-will employment instruction harmed it and, given our burden on the elements of a claim for retaliation and a pretext, we see no harm.”

The U.S. Department of Labor has filed its own motion to award back pay higher than the jury, saying Mr. Zettlemoyer is entitled to at least $98,340 in back pay plus $10,250 in lost benefits for a total award of $108,590 along with an award of prejudgment interest on back wages and a tax “mark-up” on back wages. The district court denied the department’s request for increased late pay and increased tax on late pay, but awarded prejudgment interest on the $25,000 award.

“Fairmount Foundry gives us no authority, there must be evidence of financial harm, such as an unpaid debt or an unsatisfied financial obligation to award prejudgment interest,” the judge said. “Rather, the prejudgment interest is presumed to render whole Mr. Zettlemoyer, who the jury found suffered a retaliatory discharge. To the extent that proof of “financial harm” is required, as Fairmount suggests, Mr Zettlemoyer said that following his dismissal he could not financially care for his children, his girlfriend “has had to take more hours” and the family needed to move back in with their mother.

The department’s motion also asked the district court to reinstate Mr. Zettlemoyer to his former job at Fairmount Foundry or award him a starting salary.

“After carefully reviewing the evidence on file, we order Fairmount Foundry to reinstate Mr. Zettlemoyer,” the judge said. “Jury found Fairmount Foundry liable for retaliation, finding that it terminated Mr. Zettlemoyer in October 2015” because of his OSHA complaint or…his OSHA complaint [was] a substantial reason for his dismissal”.

The department also asked the district court to permanently restrain Fairmount Foundry from retaliating under section 11(c), to order Fairmount Foundry to delete Mr. Zettlemoyer’s personnel file, provide a neutral or positive employment reference upon request and post a job site notice for 60 hours. days.

“Our diligent jury has found that Fairmount Foundry terminated Mr. Zettlemoyer either because of his OSHA safety complaint or because his complaint was a material reason for his termination,” the court said. “The Secretary is responsible for upholding Mr. Zettlemoyer’s right to be free from retaliation after filing a safety complaint. To further the purposes of the law, we permanently prohibit Fairmount Foundry from violating Section 11(c) and order Fairmount Foundry (to) delete from Mr. Zettlemoyer’s personnel file any unfavorable reference to the release on 8 October 2015; post a court-approved anti-retaliation notice in a common area for a period of sixty days; and provide a neutral reference regarding Mr. Zettlemoyer’s employment with that to date if requested by the following employers.

A lawyer and a company spokesperson could not immediately be reached for comment.

About Jessica J. Bass

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