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

Jury award

A Pennsylvania court has denied an employer’s motion to vacate a jury’s award of punitive damages to a former employee of an iron-casting company who claimed he was terminated for reporting alleged safety and health hazards to the U.S. 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, Pennsylvania-based Fairmount Foundry Inc. and repeatedly complained about a roof leak in an area where he was working, which he considered to be a safety hazard because it leaked directly into an electrical box and created a slipping 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 next month. Mr. Zettlemoyer was terminated 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 fired him in retaliation for engaging in a protected activity under Section 11(c) of the Occupational Safety and Health Act, which prohibits certain retaliatory acts against employees.

Fairmount Foundry asked for a post-verdict order vacating the jury’s award of punitive damages and liability verdict, denying Mr. Zettlemoyer the injunctive and equitable relief sought after the trial and alternatively, a new trial because of the alleged error of not instructing the jury on at-will employment — a motion that was denied entirely by the U.S. District Court of the Eastern District of Pennsylvania in Philadelphia.

“Even if we gave an at-will employment instruction explaining Mr. Zettlemoyer could be terminated for any reason or for no reason at all, Fairmount Foundry could not have terminated him for engaging in protected activity,” the judge stated. “Fairmount Foundry does not explain how an instruction on at-will employment prejudiced it and, given our charge on the elements of a retaliation claim and pretext, we see no prejudice.”

The U.S. Department of Labor filed its own motion for an award of back pay greater than the jury’s award, contending Mr. Zettlemoyer was entitled to at least $98,340 in back pay plus lost benefits of $10,250 for a total award of $108,590 as well as an award of prejudgment interest on back pay and a tax "gross up" on back pay. The District Court denied the department’s request for the increased back pay award and the tax gross-up on the back pay award, but awarded prejudgment interest on the $25,000 back pay award.

“Fairmount Foundry provides us with no authority there must be evidence of financial harm such as unpaid debt or unmet financial obligation to award prejudgment interest,” the judge stated. “To the contrary, prejudgment interest is presumed to make whole Mr. Zettlemoyer, who the jury found suffered a retaliatory discharge. To the extent evidence of ‘financial harm’ is required, as suggested by Fairmount, Mr. Zettlemoyer testified as a result of his termination he could not financially care for his children, his girlfriend ‘had to pick up more hours,’ and the family needed to move back to his mother’s home.”

The department’s motion also asked the District Court to reinstate Mr. Zettlemoyer to his former position at Fairmount Foundry or alternatively award him front pay.

“After carefully considering the record evidence, we order Fairmount Foundry reinstate Mr. Zettlemoyer,” the judge stated. “The jury found Fairmount Foundry liable for retaliation, finding it terminated Mr. Zettlemoyer in October 2015 ‘because of his complaint to OSHA or ... his complaint to OSHA [was] a substantial reason for his termination’.”

The department also asked the District Court to permanently enjoin Fairmount Foundry from retaliating under Section 11(c), order Fairmount Foundry expunge Mr. Zettlemoyer’s personnel file, provide a neutral or positive employment reference on request and post a notice at the work site for 60 days.

“Our diligent jury found Fairmount Foundry terminated Mr. Zettlemoyer either because of his safety complaint to OSHA or because his complaint was a substantial reason for his termination,” the court stated. “The Secretary is charged with enforcing Mr. Zettlemoyer’s right to be free from retaliation after making a safety complaint. To advance the purposes of the Act, we permanently enjoin Fairmount Foundry from violating Section 11(c) and order Fairmount Foundry (to) expunge from Mr. Zettlemoyer’s personnel record any adverse reference to discharge on October 8, 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 it to date if requested by subsequent employers.”

An attorney and a spokesperson for the company could not be immediately reached for comment.



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