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Date: 02-07-2013
Case Style: Joshua Mandevill v. Airflo Cooling Technologies, LLC
Case Number: CJ-2010-1690
Judge: Linda G. Morrissey
Court: District Court, Tulsa County, Oklahoma
Plaintiff's Attorney:
Defendant's Attorney: Randall J. Snapp and Wilson T. White
Description: Joshua Mandevill sued Airflo Cooling Technologies, LLC on a wrongful termination theory.
Mr. Mandevill began working for Defendant Airflo on August 1, 2008. He sustained an accidental injury arising out of and in the course of his employment on January 15, 2009. He waited several weeks before submitting a formal written notice of injury as he was hopeful his symptoms would dissipate. As this did not happen, Mr. Mandevill officially notified his supervisor, David Kelley, on March 17, 2009. Mr. Kelley performed an investigation and concluded the injury resulted from improper lifting, insufficient training and slippery conditions.
On or around June 22, 2009, Mr. Mandevill advised Airflo, via text message, that the doctor had taken him off of work for two (2) weeks. The next note made in Mr. Mandevill’s employment file indicates that “Josh claims to have a lawyer” (Ex. 1). An additional note in Mr. Madevill’s employment file indicates that on July 7, 2009, Mr. Mandevill called in and advised Defendant Airflo that he “will not be in, back is hurting”. Mr. Mandevill was then written up for
and as plaintiff represented to the Oklahoma Workers’ Compensation Court, the plaintiff was unable to work from July 6, 2009 through approximately October 2011. As a result, any evidence or argument that the plaintiff is entitled to back-pay damages during the period from July 6, 2009 through October 2011 is inconsistent with plaintiffs prior admissions and representations; is irrelevant; and is unfairly prejudicial to Airflo, and therefore should be prohibited.
In addition, plaintiff settled his workers’ compensation claim against Airflo on December 13, 2011 and received $5,000.00 for vocational retraining as part of that settlement. The vocational retraining was paid to enable plaintiff to obtain employment other than at Airflo due to plaintiffs alleged inability to return to his position at Airflo. Consequently, he cannot claim that he would have continued or returned to work for Airilo had his employment not been terminated.
“no call, no show” on July 8, July 9 and July 13, 2010. Additionally, Mr. Mandevill is terminated on July 13, 2010 for allegedly the same reason.
Defendant’s Version: The Plaintiff, Joshua Mandevill, was not wrongfully terminated or otherwise retaliated against because he filed a workers compensation claim against Airflo. Rather, Mr. Mandevill was terminated for job abandonment because he did not call in or come to work for three consecutive days and thus violated Airflo’s three-day no-call, no-show policy. Moreover, Mr. Mandevill has not suffered any damages as a result of his alleged wrongful termination because he was off due to a work-related injury from the day of his termination until March, 2012, and therefore would not have been able to work at Airflo even if he had not been terminated. Finally, Mr. Mandevill’s position was eliminated shortly after his termination, further precluding his ability to obtain damages.
Defendant's Motion in Limine
ARGUMENTS AND AUTHORITIES
I. The Court Should Prohibit the Plaintiff from Introducing Evidence with Regard to Back Pay Damages for the Period of
Time He Claimed He was Physically Unable to Perform His Work-Place Duties at Airflo
Plaintiff claims that he was wrongfully terminated from his employment on July 13, 2009 in retaliation for exercising his rights under the Oklahoma Workers’ Compensation Act. One of the elements of damages claimed by plaintiff is the loss of wages, or wages he did not receive, since the date of his termination to the present, commonly referred to as “back wages.” Plaintiffs damage claim is predicated upon the theory that he would have earned these wages had he not been wrongfully terminated . However, the undisputed evidence, including plaintiffs admissions and representations to the Workers’ Compensation Court, do not support these claims.
“[T]he purpose of a back pay award is to make the employee whole and restore the economic status quo that would have been obtained but for the wrongdoing on the part of the employe.. . .“ Aguinaga v. United Food & Commercial Workers Int’l Union, 58 F.3d 513, 520 (10t1 Cir. 1995). “[Black pay refers generally to awards for a complaintant’s lost earnings. It includes all wages that would have been earned absent the [wrongful termination].” Tate v. Browning-Ferris, Inc., 1992 OK 72, 833 P.2d 1218, 1221 n. 6 (internal quotations omitted). Moreover, an employer is not liable for back pay damages when the alleged wrongfully discharged employee is unable, unwilling or unavailable to work. Thomsen v. City of Anadarko, Okia., No. Civ-05-1 196-F, 2006 WL 2773230 *3 (W.D. Okla. Sept. 25, 2006); see also Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (lOth Cir. 1990); Endres v. Helms, 617 F. Supp. 1260, 1269 (D.C. Cir. 1985) (back pay should not be awarded to plaintiff for periods he is unable to work because of his poor health); Canova v. Nat’l Labor Relations Bd., 708 F.2d 1498, 1505 (9th Cir. 1983) (citing Am. Mfg. Co., 167 N.L.R.B. 520, 522 (1967)) (an employer is not liable for back pay during periods plaintiff was unavailable for work due to a disability).
In short, because the purpose of a back-pay award is to compensate the plaintiff for lost income arising from a wrongful act, a plaintiff that would have been unable to work irrespective of being wrongfully terminated is not entitled to back pay. Put differently, a plaintiff is not entitled to back pay damages if the wrongful termination was not the “but for” cause of his or her lost wages. In the instant case, the plaintiff, by his own claims and admissions, would have been unable to work whether he had been terminated by Airflo or not, and therefore he is not entitled to recover back pay for the periods he was incapacitated.
Outcome: Settled and dismissed with prejudice.
Plaintiff's Experts:
Defendant's Experts:
Comments: