all right good morning everyone welcome to the four circuit joining me this morning are my colleagues judge stephanie bakker video and senior judge bill traxler on the phone and with me is my blog partner richard taylor spear and we represent some of contracting group incorporated with just referred to some of that as some of throughout the morning and we w the court reverse and vacate the judgment from the district court we have provided a rather lengthy factual recitation and our brief so out will just  give a short summary of the undisputed facts before we discuss the legal issues on appeal summit employee driscoll for approximately forty six days he started working at the  t a job site in columbia south carolina ultimately a few days into his employment the company moved him to a job site in charlotte north carolina during the short time period he's worked with the company he engaged in two off the next three days during that time period the company's division is near zach graham told driscoll's father who was also a supervisor at summit that the company would transfer driscoll back to the job site in columbia south carolina four days after the altercation with mr reiner driscoll showed up at the columbia south carolina job site turned in his equipment didn't perform any job duties he quit and that's one of the central issues that is the central issue in appeal is the fact that d driscoll quit briefly remand the court of the standard on appeal for judgment as a matter of law some its position is that mr disco or rather excuse me that summit should have one directed verdict and should have also prevailed on its motion for judgment as a matter of law the th circuit in the case been a verse a c s x quoted merit versus proud insurance syndicate a th circuit case from two thousand and five and said this if a reasonable jury could reach only one conclusion based on the evidence or that if the verdict in favor of the nonmoving party would necessarily be based on speculation and conjecture judgment as a matter of law must be entered their position the plaintiffs entire case rested on speculation and conjecture particularly  say that the evidence is undisputed but isn't there evidence in the record suggesting that mr school could have believed that he had been fired number one that the fellow who you say he engaged in an altercation with told him he was fired and over to the electronic devices that he would typically use on the job or disconnected suggesting that he was no longer welcome at at the job site and i'm sure there's some other evidence that your colleague will point to but i don't know that it's fair to say that the evidence is undisputed it isn't disputed because he said his is position shift frequently in the lawsuit and he said at one point that rather fired him during the fight and he moved off that position later and fact five months after he quit he filed a charge with the north carolina department of labor and in that charge he never said resignation you have an involuntary terminations where someone's actually discharge or in certain limited situations you could have a constructive discharge where someone quits but they're able to say that they were essentially fired because the employer made their job so offensive that no reasonable person could continue working there he never alleged constructive discharge in this case and there is no  no there are no there are no disputed facts there he never presented any evidence that he was fired run or didn't have the authority to fire him and there's evidence to that he never refuted that and there's a whole body of case law that we've cited in our brief that says you can't get to a jury you can't get past seventy judgment you can't get past directed verdict by relying on your own inconsistent testimony in your own inconsistent version of the events which is what he attempted to do and that's an error that the district court made by allowing him to do that for example he was inconsistent on this when he says he was spared he says rounder fired him and then later he says no ran or didn't fire me had to do so that i was fired he applies for a subsequent job and on that job application he says he had never been fired from a job and said that that was true to the best of his knowledge he says that router he st said that rather fired him on the night of july out of the twenty a but then in a series of text messages and e mails he sent he said in those text messages and e mails over the next three days that he was on a leave of absence well again that's inconsistent with him saying that he was fired on the th you can't be on a leave of absence two and three days later if your own position in th case you were fired on july the twenty it's undisputed that no one ever told him he quit there's no documentation no one ever told him that he was fired there was no documentation showing that he was fired he well he was not reporting to work when he didn't have any protected time off he didn't have any paid or unpaid time off and apparently the company didn't want to use in their devices during that time period he was essentially away without an excuse during that time period no one ever told him not to report to work and in fact as i said before the company's position was they'll transfer him from the charlotte job site back to columbia he did go back to the columbia job site but he turned the rest of his equipment on didn't perform any work yes just about what about the some medicine the record i recall mystified his refusal to answer his calls and text in july that might suggest that the company wanted nothing more to do with  and in fact he was discharged with it that's again not an adverse action that just could indicate that mr was busy the company never firing the fact that they didn't return a phone call or text me e is not the same as telling him that he's fired again there's no legal theory that under which he could say that there's an inferred determination and there are also e mails that where the company he cited to in his brief where the company said are right who is the designated terminator and who's going to giving the boot those e mails just show that at that point he still wasn't fired they were just discussing what they were going to do with him and with mr reiner which was reasonable and prudent under the under the circumstances nd legal argument that we would like to discuss and this again is clear and this again warranted both directed verdict and granting of the judgment as a matter law is that he engaged in no protected activity the law is clear in north carolina under the read a statute through the pierce case from the north carolina court of appeals that we cited in our brief that an internal complain to a supervisor about a safety issue is not protected activity and that's all we had here the evidence shows that the only people who he discussed safety issues with at the company were manager  supervisors and pierce have a case from the th circuit from last year and all of the other cases that we've cited say that and internal complaint to a manager about a supervisor is not protected activity he has never cited any cases to the contrary no cases to the contrary exist yes j forefront according to the north carolina court of appeals in peers which is again the house north carolina court that's ever addressed the issue has to be a complaint to someone outside of management and there's no evidence that he ever did that so we have no one outside of the company could be someone within the company who's not in management possibly that he did that didn't occur in this case the only people who complain or reported anything to or discussed in these issues with it is the person in the company that would be someone he would report to that would not be in management when they had to be his superior not necessarily to go back to the company  company had a policy on this and alternate dispute resolution policy in its handbook and in that policy the company clearly said if you want to report a safety issue you can go to anyone in management any supervisor all the way up to the c e o and so it was within that policy that he acted and he only reporter discussed safety issues to people within management per that policy and according to the pierce case and all those other cases cited in our brief that's not enough to constitute protected activity so in this case we did have an adverse action because he quit he was not fired and the end even if there were an adverse action he didn't engage in any protected activity so on either or both of those grounds some of it was entitled to directed verdict and judgment as a matter of law ok so it does sound like you're saying court to risen to the level of protective that protected activity he would have had to go to someone outside the company yes it's typically set up the under the rita act that you would go to osha for example to f safety complying he never did that the evidence is in dispute he never raised an issue of safety never raised an issue of workers compensation at all with anyone but with safety he only raised the issue with folks sad that management and said that management team the next point is a worker's compensation is he failed to exhaust his administrative remedies in north carolina you have to file a claim with the north carolina department of labor within one hundred and eighty dollars days of an adverse action again there was action here he filed a claim with the north carolina department of labor and that claim he never raised any workers compensation is shoes out south of the one hundred and eighty day period his lawyer sent a letter and for the  st time raised a worker's compensation issue the problem with that is it was outside the one hundred and eighty dollars day period and secondly we've cited cases that say that a letter from an attorney does not raise an issue does not exhaust administrative remedy it has to be a sound sworn statement from the claimant himself he didn't do that says an additional basis that the company should have one directed verdict and judgment as a matter of law in that he failed to exhaust his administrative remedies on workers compensation with rita as the belcher you're a bit over your time so i'm going to stop you there and ask mr band camp and respond you see the language and then read a statute about any person providing information initiate and great these are expansions in response to that fire now the account in this case would have  the sort of the public policy aspects of this case but i'd imagine none of this matters if in fact the record doesn't support a finding that your client was discharged and mr belcher spent a good bit of time talking about that and pointing to the record evidence including statements by your client internal emails by the company indicating that they were thinking about firing mr driscoll but apparently hadn't got around to it at least in the telling of the of the of the evidence so i'd like you to spend at least a few minutes talking about that because i would say that you know the record here is what is not the strongest on this issue of this charge well you know start right so let me stop you there is he was told that but then he talks of the c e o there's evidence in the record the person who would have the ultimate authority as to whether or not to discharge him tells him that don't ignore reiner you're not just you're not far you know up i'm telling you you're not fired why would a reasonable jury accept that notion that ron had the authority to pardon based on that and he didn't have the authority to fire him but i understand mr deciples that this you know  direction and letting them know that he's ready to return or and response to that nicole had been met that they are deliberately ignoring those requests to return because they're talking to a lawyer and that then triggers d you know a deliberations that was going to be designated terminator and even a recognition that the investigator personal motivation to fire mr burris so the company's own internal e mails are acknowledging that why did he show up to work well it was well your honor was obvious to him by virtue of the fact that many many inquiries about returning to work were in oregon the fact is devices turned off i mean i think any coordinate your return and that's what happens in the real world you're out and that's what i mean at that point he turned in the equipment that was no that was lost so when you have a lot of equipment and also everybody is ignoring you're in them he did everything but send a smoke signal attempting to return to work it was plain to him and frankly it was yes judge i would st discuss the wrongful discharge in violation of public policy we cited two cases in our brief that are dispositive on the issue that say that in north carolina it's not a violation of public policy merely to fire someone based on a police report i would also say that the lens or case is not on point at all it didn't deal with a police report at all it dealt with constitutional issues and finally there couldn't be and nexus to his police argument for her firing before he ever talked about calling the police so the town line doesn't add up but it again goes back to the problematic issue driscoll that summit never fired him to begin with the only one who he says ever ferreting was around her and then he even admits that rather didn't have the authority to do it and changes his story over time as to as to the terminations on the ables case mr van kampen argued that the ables case contro abel's was a north carolina case that preceded the rita act there's no case in the history of rita that agrees with driscoll's position that an employer can be allowed go if it merely believed that someone might file the worker's compensation  saying so does it matter here the remedies in this case arise as a result of two different causes of action and that somehow makes it different you having having elected the cause of action which respect compensatory damages and having chosen your remedy there and that cause of action does not allow for turner's fees it seems odd that he would then be allowed to nonetheless receive an award for attorney's fees for a cause there's anything else judges can ask the question punitive damages and any other women did pursuant to another statute that provides for multiple damages are you familiar with that statute and if you are could you tell me why it's not applicable and i have a prepared  spear we can hear you thank you judges may it please the court tailor sphere on behalf of some contracting group inc in greenville south carolina before i address tricycles cross appeal i would like to know something that mr information to anyone mr van kampen told the jury very clearly in the opening statement that he was asserting protected activity on grounds that he initiated an inquiry your honour's that can be found in the appendix at nine hundred and seventy six this idea that a juror school was providing information quote to anyone is a post hoc rationale developed for this appeal and it was never something that was asserted a trial with that your honors i will move on to the rebuttal to driscoll's cross appeal summit requests three things with respect to the cross appeal  the issue because of the dispositive issues that have been raised and some of its own original appeal as the court has probably already surmised if some it prevails on the issues that mr  argued this court need not reach the cross appeal for reasons that it would be moot secondly we asked that this court not invade the jury's province with respect to its award of sixty five thousand dollars and back pay because there was substantial evidence in the record to support that element that verdict of back pay within the law that backpay or does not violate the law and secondly with respect to the spirit can i ask about that was that really a question for the jury or for the district court to decide appreciate you bringing that up your honor we refute it heavily during the charge conference and brought up time and time again that the issue of backpay under title seven is for the judge's province only we we were ultimately ruled against on that issue but you will find much preservation on that issue in the appendix during the charge conference we always believed that backpay could never be decided by the judge under supreme court precedent that says that title seven back pay as for the judge only and not the juror so and then therefore for whatever reason we don't agree with you on the principal appeal you think the case at least needs to go back to the judge to figure out this i mean your quarrel with the amount of the calculation or what you're i actually we we're not appealing the amount i what i'm doing here is addressing something that was in the briefs that was not argued during the rationale behind that or arm go ahead i just was curious about the sort of the the way this award was calculated and it struck me that the district court may not of fully engage with this issue and and done what it was supposed to with respect to the back pay but i don't mean to cut you off you go and make your argument sure well and i think enough as a practical standpoint your honor to your point do does depend on need to send this back down my argument to this panel on that ground would be the same that it would be to the district court if it did send it back down and that is this just go ask for added or on on the issue of backpay despite never moving for below we ultimately believe that this issue has been waived because the court has never spoken on whether or not enhanced fact that should be a war but here will be the argument to the district court should this panel reman just go asks for nearly forty thousand dollars in a travel produce them to be added to back pay he also asks for thirty thousand dollars into stretch unary bonus under this codes court's own precedent back pay as restitution and as driscoll admittedly under oath during his testimony that the purpose of his per diem was strictly to cover his travel expenses as a field employee while he traveled just go quit there are no travel expenses to recommit after he quit therefore the jury nor the judge if this court remands could ever award anything for a per diem secondly with respect to this just this issue of discretionary bonuses there is no evidence in the record whatsoever to support an award of a discretionary bonus much less the thirty thousand dollars that driscoll what asked the score to tack on if you take those two components only and you subtract them from driscoll's asked from this panel you get very clearly sixty four thousand four hundred and thirty eight dollars that's how the jury could have very easily within the law awarded what it did and i'm going to move on to the  argument with respect to kuykendall in the thirty years since kuykendall has been decided it has never once been held to apply to anything other than the north carolina deceptive unfair trade practices act and the reason for that is it's a very unique statute the conduct that underlies the liability for attorney's fees has an extra element it requires i'm like most other statutes that exist for attorney requires the extra additional element of an unreasonable refusal by the defendant to settle that is not the case and rita rita is a traditional prevailing party statute like title seven for the employee therefore asked the question about the c g s one dashti that talks about expressly requires an election of remedies so i guess i'd ask you to respond to the question from your perspective it's a very wise question for this he he does he concedes and no one disputes in this appeal that just call may not be entitled to treble damages and the punitive damages that arise into the tour therefore this it in order to give driscoll what he has asked thank you for your arguments counsel in this case it would be our producer and we're going to come down and greet you all in person and shake your hand obviously we can't do that here today given the circumstances in which we find ourselves but i do want to thank you for ready registering before us and helping us to resolve these this case and wish you all well and that you remain safe and and sound and thanks again and with that