UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1456

JUSTIN DRISKELL,

Plaintiff − Appellee,

v.

SUMMIT CONTRACTING GROUP, INC.,

Defendant – Appellant.

No. 19-1497

JUSTIN DRISKELL,

Plaintiff − Appellant,

v.

SUMMIT CONTRACTING GROUP, INC.,

Defendant – Appellee.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:16-cv-00819-FDW-DCK)

Argued: May 28, 2020 Decided: September 24, 2020

Before DIAZ and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge. Affirmed in part, reversed in part, vacated in part, and remanded by unpublished opinion. Judge Diaz wrote the majority opinion, in which Judge Thacker joined. Senior Judge Traxler wrote a separate opinion concurring in part and dissenting in part.

ARGUED: Reginald Wayne Belcher, Columbia, South Carolina, Richard Taylor Speer, TURNER, PADGET, GRAHAM & LANEY, PA, Greenville, South Carolina, for Appellant/Cross-Appellee. Joshua Reed Van Kampen, Nicole Katherine Haynes, VAN KAMPEN LAW, PC, Charlotte, North Carolina, for Appellee/Cross-Appellant. ON BRIEF: Laura J. Wetsch, WINSLOW & WETSCH, PLLC, Raleigh, North Carolina, for Appellee/Cross-Appellant.

Unpublished opinions are not binding precedent in this circuit.

2 DIAZ, Circuit Judge:

In this case, a jury found that Summit Contracting Group violated North Carolina

law by firing Justin Driskell as retaliation, either (1) for his complaints about workplace

safety or (2) because Summit believed that he would file a workers’ compensation claim.

Summit appeals, arguing that it was entitled to judgment as a matter of law or a new trial,

and that the jury’s punitive-damages award wasn’t supported by the evidence. Driskell

cross-appeals, contending that the district court erred by not increasing the jury’s

compensatory damages award to reflect the full amount of back pay that he’s owed and by

requiring him to elect between punitive damages and attorney’s fees.

We affirm with respect to Summit’s appeal because a reasonable jury could have

found for Driskell on the merits and awarded him punitive damages. With respect to

Driskell’s cross-appeal, we hold that he failed to preserve his back-pay request for appellate

review by not raising it before the district court in a timely fashion. However, we reverse

the district court’s order requiring Driskell to elect between punitive damages and

attorney’s fees, as the two awards serve different interests and aren’t based on the same

conduct. We vacate that portion of the judgment, and remand for the district court to enter

judgment for Driskell for punitive damages, attorney’s fees, and untrebled compensatory

damages.

3 I.

This appeal arises from a motion for judgment as a matter of law, so we recite the

facts with all reasonable inferences drawn in favor of the non-movant, Driskell. See Austin

v. Paramount Parks, Inc.,

(4th Cir. 1999).

A.

Summit is a general contractor that manages construction projects. On June 4, 2015,

Summit hired Driskell as an Assistant Superintendent and promptly assigned him to a

project in Charlotte, North Carolina. He reported to Superintendent Daniel Rhyner, who

in turn reported to the Project Manager, Steve Fudge. Driskell’s father, Tom Driskell, had

been a senior Summit employee for years.

In June and July 2015, Driskell noticed that Rhyner frequently drank alcohol at

lunch and returned to work intoxicated, occasionally acting belligerently. One day, Rhyner

drunkenly brandished a handgun at the job site. Summit’s policies prohibit visiting a job

site after drinking or while carrying a gun.

Driskell reported Rhyner’s drinking to more senior employees several times.

During his first week at the Charlotte project, he complained to Fudge that it was a safety

issue. Fudge relayed this complaint to Marc Padgett, Summit’s president and chief

executive officer. Tom Driskell also relayed his son’s complaints to Padgett’s wife, Nicole

Padgett, who was Summit’s chief administrative officer. The Padgetts, however, suspected

that the Driskells were scheming to file a “bogus lawsuit” against Summit. J.A. 1648.

On the night of July 16, 2015, Justin Driskell ran into Rhyner, who was drunk, in

the parking lot of a hotel where many employees were staying. They argued about a

4 workplace safety issue, at which point Rhyner angrily told Driskell to pack his things and

leave the job site.

Later that night, Driskell spoke with Mr. Padgett on the phone and complained again

about Rhyner’s drinking on the job. Padgett told Driskell to disregard what Rhyner had

said about leaving the job site and that he would send a senior employee, Tom Born, to

Charlotte to investigate Driskell’s complaints. After the call, Rhyner apologized to

Driskell. Mr. Padgett also alerted Rhyner that Born was coming to investigate the

Driskells’ allegations about his drinking.

On July 18, Born met with Rhyner and told him that the Driskells had complained

about him. Born also asked a few employees whether they had seen Rhyner drink at the

job site, which none of them had. He didn’t test Rhyner for drugs or alcohol, check his

company credit card receipts (which reflected purchases of alcohol), or ask anyone if they

had seen Rhyner drink at lunch, as Driskell had alleged.

Born then met with Driskell. He asked no questions about Rhyner’s drinking.

Instead, he told Driskell to stop telling people what was going on at the job site, and that

whatever happened at the job site should stay there. Born then took Rhyner and other

employees (but not Driskell) out to lunch, buying Rhyner two beers. This wasn’t a

violation of company rules because Rhyner wasn’t going back to work after lunch.

The next day, Born sent a report to Mr. Padgett, concluding that Driskell was “a

good kid” but needed to “grow a pair of balls.” J.A. 2585. Mr. Padgett agreed.

The day after that (July 20), Driskell saw Rhyner, who appeared drunk, in the hotel

parking lot. At Rhyner’s insistence, the two had a beer together. Rhyner then said that he

5 was removing some employees from the team that Driskell supervised, and that Driskell’s

team needed to increase its production (even though it would have fewer members). In

response, Driskell said that pushing his team any harder would create safety issues. The

two argued about this and cursed each other.

According to Driskell and an eyewitness, Driskell then turned toward his truck to

leave. Rhyner followed him and punched him in the face repeatedly. Driskell didn’t throw

a punch, but wrestled with Rhyner, threw him over his head, and put him in a headlock.

Neither party was hurt seriously, although Rhyner had to wear a neck brace for two weeks.

During the fight, Rhyner told Driskell, “You’re fired.” J.A. 1073.

Later that evening, Driskell spoke to Mr. Padgett on the phone. Padgett told Driskell

that he wasn’t fired and that Rhyner lacked the authority to fire him. Driskell replied that

he would quit if Rhyner remained at Summit. 1 Padgett didn’t respond to that threat.

Driskell also met with Fudge that night, who asked Driskell to return his work tools.

Driskell expressed confusion about why he had to do that, as he planned to continue

working at Summit, but he ultimately complied.

That same night, Driskell filed a criminal complaint against Rhyner—even though

Fudge and Padgett had discouraged him from doing so—which led the police to charge

1 Rhyner drove to his home in Tennessee that night and told his superiors that he was taking two weeks of paid time off. He remained employed by Summit when this lawsuit was filed.

6 Rhyner with assault. 2 Driskell also visited the emergency room for medical treatment. The

doctor examining him said that he could return to work three days later (July 23).

The next morning, Mrs. Padgett emailed her husband and several other employees,

writing: “We need to find out what steps to take next because Tom and Justin [Driskell]

are plotting a bogus lawsuit that I sniffed out almost two weeks ago. This whole thing was

planned.” J.A. 2699. She later followed up to write that Tom Driskell “orchestrated this

entire scam” with “the intent to screw Marc [Padgett] out of 5 MIL . . . .” J.A. 2698.

Driskell took the next two days off and drove to Columbia, South Carolina, where

his father lived and where Summit had another work site. He planned to return to work on

July 23, but wasn’t sure which work site he should report to, as he had been receiving

“conflicting information” (presumably from his father) on this point. J.A. 1095. Driskell

had no paid or unpaid leave time available, so if he was still employed by Summit on July

21 and 22, he was breaking the company’s rules by missing work.

Over those two days, Driskell called and texted Fudge repeatedly, seeking clarity

on where he should report to work. Fudge didn’t answer. On July 22 at 3:37 p.m., Driskell

emailed Fudge and Mr. Padgett, saying: “Steve you have refused my calls and text

message[s.] [A]fter tomorrow my [doctor] has cleared me to go back to work[,] please

advise what I’m suppose[d] to do.” J.A. 2703 (cleaned up). Padgett promptly forwarded

this message to his wife, who started a group email thread that included her husband, Born,

and Zach Graham (another employee).

2 The charges against Rhyner were eventually dismissed at Driskell’s request.

7 At 4:23 p.m. on July 22, Mrs. Padgett explained in the group thread that she told

Fudge not to respond to Driskell “before we knew the plan from the attorney.” J.A. 2702.

The next day, the group debated via email which of them should “give [Driskell] the boot.”

J.A. 2702. Born wrote, “I think Zach was the designated terminator because Steve and I

would have personal motivations to Fire [sic] him . . .” J.A. 2701. Fudge also noted that

Driskell still had his company phone and iPad, and asked Graham to collect Driskell’s

devices. But notwithstanding this conversation, no Summit employee (except for Rhyner

back on July 20) ever told Driskell that he was fired.

Driskell’s company-issued phone and iPad were deactivated on July 22, shortly after

he had emailed Fudge and Mr. Padgett. At trial, he testified that he “knew at that point that

[he] had been terminated and that it was not going to be reversed.” J.A. 1216.

Nevertheless, he texted Fudge the following message from his personal phone later that

evening: “Still haven’t heard any word as to what you need me to do. Please give me a

call.” J.A. 2706. Fudge never responded.

The next afternoon (July 23), Driskell turned in his company-issued devices at the

Columbia job site. He explained at trial that he did so because he “knew . . . that [he] had

been fired and that if [he] kept company property that [he] could be prosecuted for theft.”

J.A. 1098.

About a month later, Driskell applied for a new job at another company. On the

application, he checked a box indicating that he had never been “fired from a job.” J.A.

1204. At trial, Driskell explained that this was a lie to improve his chances of getting the

new job.

8 B.

In January 2016, Driskell filed a complaint with the North Carolina Department of

Labor. He alleged that he was fired because of his complaints about Rhyner and his refusal

(for safety reasons) to follow Rhyner’s instructions to increase his team’s production, and

because he “became a threat, risk or liability to the Company after Mr. Rhyner attacked

[him].” J.A. 78. After the Labor Department declined to investigate his complaint, Driskell

asked for and received a right-to-sue letter.

Driskell then filed this suit, bringing claims for, as relevant here, retaliatory

termination in violation of North Carolina’s Retaliatory Employment Discrimination Act

(“REDA”) and wrongful discharge in violation of North Carolina common law. He alleged

two theories for why Summit fired him: (1) because of his complaints about Rhyner’s

drinking and their fight, and (2) because Summit believed that he would file a workers’

compensation claim due to his injuries from his fight with Rhyner.

Discovery yielded evidence that Summit has exhibited hostility toward other

workplace safety reports and workers’ compensation claims. For example, Mrs. Padgett

once complained about having to document a workplace accident; she instructed

employees to put medical bills on company credit cards rather than open workers’

compensation claims; and Summit would screen potential employees for their workers’

compensation claim history.

A jury trial ensued. The jury found that Summit had fired Driskell and, in doing so,

violated REDA and North Carolina common law. The jury didn’t specify which of

Driskell’s two theories of retaliation it accepted. It also awarded Driskell $65,000 in

9 compensatory damages (representing his lost wages and benefits) for his two claims (which

he could collect only once) and $681,000 in punitive damages on the wrongful-discharge

claim.

The district court denied Summit’s motions for judgment as a matter of law and for

a new trial, in which Summit argued that the verdict was unsupported by the evidence and

criticized the court’s jury instructions regarding the types of activity that REDA protects.

Further, the court denied Driskell’s motion to amend the judgment without addressing

Driskell’s request that the court increase his compensatory award to reflect additional lost

back pay. Driskell hadn’t included this request in his motion to amend the judgment (which

he had filed in a timely fashion), but rather in a response to one of Summit’s motions,

which Driskell filed 38 days after the judgment was entered.

Later, the court held that Driskell was required to choose between a $250,000

punitive-damages award 3 for the wrongful-discharge claim and attorney’s fees under

REDA. 4 The court reasoned that North Carolina law prevents duplicative remedies, see

United Labs., Inc. v. Kuykendall,

(N.C. 1993), and that the award of

3 The court reduced the punitive-damages award to $250,000 because, as Driskell conceded, that was the maximum that he could collect under N.C. Gen. Stat. § 1D-25(b), which provides that “[p]unitive damages awarded against a defendant shall not exceed three times the amount of compensatory damages or two hundred fifty thousand dollars ($250,000), whichever is greater.” 4 REDA provides that a “court may award to the plaintiff and assess against the defendant the reasonable costs and expenses, including attorney’s fees, of the plaintiff in bringing an action pursuant to this section.”

(c).

10 punitive damages and attorney’s fees were based on the same conduct (namely, Summit’s

retaliatory firing). Driskell then chose to forgo punitive damages, collecting $195,000 in

trebled compensatory damages 5 and $441,600 in attorney’s fees.

Both parties appealed.

II.

We first address Summit’s appeal, which raises several issues of North Carolina

law. In ruling on these issues, we must predict how the Supreme Court of North Carolina

would rule, Stahle v. CTS Corp.,

(4th Cir. 2016), and follow any “fully

reasoned holding” by the North Carolina Court of Appeals unless we are “convinced that

the state’s highest court would not follow that holding,” Assicurazioni Generali, S.p.A. v.

Neil,

(4th Cir. 1998) (cleaned up).

A.

First, Summit insists that it was entitled to judgment as a matter of law on Driskell’s

REDA and wrongful-discharge claims because it never fired him; rather, he quit. We must

5 REDA requires a court to treble a plaintiff’s compensatory damages if the defendant’s violation was “willful,” i.e., if it involved “knowledge or reckless disregard of whether [the defendant’s] action violated the statute.” Morris v. Scenera Research, LLC,

(N.C. 2016) (citing

(c)). The district court, not a jury, must make this determination. See

Driskell conceded that he was required to choose between punitive and trebled damages. He sought to recover $250,000 in punitive damages, $65,000 in untrebled compensatory damages, and $441,600 in attorney’s fees. But after the district court held that he couldn’t collect both punitive damages and attorney’s fees, he elected to recover treble damages and attorney’s fees in lieu of punitive damages.

11 affirm the district court unless no reasonable jury could have ruled for Driskell. Dennis v.

Columbia Colleton Med. Ctr., Inc.,

, 645 (4th Cir. 2002).

As relevant here, REDA provides that:

No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to . . . [f]ile a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to [the Occupational Safety and Health Act of North Carolina (“OSHANC”) or the North Carolina Workers’ Compensation Act].

(a). To prevail on a REDA claim, a plaintiff must show that (1)

he exercised his right to engage in protected activity; (2) he suffered an adverse

employment action; and (3) a causal connection exists between his exercise of the protected

activity and the retaliatory action. Edwards v. PCS Phosphate Co., Inc.,

(E.D.N.C. 2011) (citing Brackett v. SGL Carbon Corp.,

(N.C.

Ct. App. 2003)). And a wrongful-discharge claim requires a plaintiff to “identify a

specified North Carolina public policy”—here, the policy against retaliation codified in

REDA—“that was violated by an employer in discharging the employee.” McDonnell v.

Guilford County Tradewind Airlines, Inc.,

(N.C. Ct. App. 2009)

(cleaned up).

As an initial matter, we note that North Carolina law provides no legal standard for

determining whether an employee was fired or quit. Relatedly, we have found no authority

requiring that an employer expressly tell an employee that he’s been fired.

With that in mind, we conclude that the evidence supports a finding that Summit

fired Driskell on either July 22 or July 23, 2015. Most significantly, Summit deactivated

12 Driskell’s work-issued devices on July 22. Fudge and Padgett also didn’t respond to

Driskell’s attempts to contact them on July 21 or 22, and Fudge had asked Driskell to return

his work tools on the night of July 20. And when Driskell returned his work-issued devices

on July 23, no one directed him to continue working at Summit or told him that Summit

mistakenly deactivated his devices. A reasonable person in Driskell’s position would have

understood that he had been terminated, and Summit’s internal emails on July 22 and 23

prove that it did in fact intend to terminate Driskell, despite Padgett’s statement on July 20

that Driskell wasn’t fired.

At no point did Driskell quit his job. While he did tell Mr. Padgett on July 20 that

he would quit if Rhyner remained employed by Summit, threatening to quit and actually

doing it are two different things. And while he also broke Summit’s rules by missing work

on July 21 and 22, he did so only because his doctor told him to, and in any event, breaking

an employer’s rules doesn’t necessarily signify an intent to quit. Indeed, Rhyner violated

Summit’s rules by taking two weeks off from work after his fight with Driskell, and yet he

received no punishment and continues to work for Summit.

Nor does Driskell’s statement on a job application that he had never been fired doom

his claims. To the contrary, a reasonable jury could credit his explanation that he lied to

help his chances of getting a new job. Statements on job applications aren’t binding

admissions, contrary to what Summit argues. The case Summit points to, Warch v. Ohio

Cas. Ins. Co.,

(4th Cir. 2006), doesn’t support that proposition. There, in

ruling against a plaintiff, we relied on the plaintiff’s “fail[ure] to present any evidence

13 genuinely disputing” the fact that he had admitted in a job application.

. Here,

Driskell did present such evidence.

B.

Next, Summit contends that REDA doesn’t protect internal complaints to one’s own

employer. So, Summit argues that it is entitled to judgment as a matter of law because,

even if Summit did fire Driskell for his complaints to Mr. Padgett, that couldn’t support a

REDA claim.

Whether REDA protects Driskell’s complaints is a question of law, see Pierce v.

Atlantic Grp., Inc.,

, 573–75 (N.C. Ct. App. 2012) (treating as a legal

question whether REDA protected a plaintiff’s communications with his supervisors

regarding work safety issues), which we review de novo, see Equinor USA Onshore

Properties Inc. v. Pine Res., LLC,

(4th Cir. 2019). We agree with the

district court that, while REDA doesn’t protect every internal complaint about workplace

safety, it does protect Driskell’s complaints to Mr. Padgett.

By its terms, REDA protects employees who “initiate any inquiry [or] investigation

. . . or provide information to any person with respect to” OSHANC.

-

241(a). “The Supreme Court of North Carolina has not ruled whether an internal complaint

is a protected activity under REDA.” Hadley v. Duke Energy Progress, LLC,

(4th Cir. 2017) (per curiam).

The Court of Appeals of North Carolina, however, has indicated that some internal

complaints are protected. In Pierce, the court found “persuasive” a district court holding

that REDA protected a plaintiff’s communications to an internal auditor about an ongoing

14 investigation into health and safety practices. 724 S.E.2d at 574–75 (citing Jurrissen v.

Keystone Foods, LLC, No. 1:08-CV-128,

, at *5–6 (M.D.N.C. Aug. 20,

2008)).

And in a later case, the Court of Appeals found that REDA would protect plaintiffs

who were allegedly fired for photographing unsafe working conditions and complaining

about those conditions to their boss, who replied that he wasn’t interested in such

complaints. Bigelow v. Town of Chapel Hill,

(N.C. Ct. App. 2013).

The court reasoned that REDA’s “primary purpose . . . is to ensure that employees are not

discouraged from reporting violations of OSHANC.”

(cleaned up).

On the flip side, the Court of Appeals has also recognized “that merely talking to an

internal supervisor about potential safety concerns is not a ‘protected activity’ under

REDA.” Pierce,

(quoting Jurrissen,

, at *5). For

instance, the plaintiff in Pierce proposed to his supervisors a process by which the company

might comply with new safety regulations, raising it on a weekly basis for about a month

without ever getting a response.

.

The Court of Appeals found that such activity was not protected because the plaintiff

“spoke only to his supervisors” and “there was no evidence of an investigation” into the

defendant’s practices. See

; see also Hadley,

(noting Pierce’s

recognition that “while REDA does not require filing a formal claim, it does require more

than simply complaining to a manager”). While the Court of Appeals didn’t explain why

it mattered that the plaintiff spoke only to his supervisors, we suspect that it’s because

employees do that in the ordinary course. An employee who mentions an OSHANC issue

15 to a supervisor won’t typically be seeking to assist or initiate an “inquiry” or

“investigation,” which is what REDA protects,

(a). In contrast,

an employee who goes over a supervisor’s head and complains to the company president

or an internal auditor will typically intend to assist or initiate an inquiry or investigation.

See Jurrissen,

, at *6 (finding that the plaintiff’s communication with

an internal auditor was protected by REDA, even though “merely commenting to a

supervisor about alleged unsafe conditions” would not be).

The Court of Appeals also cited approvingly a district court’s holding “that a

plaintiff’s criticism of his supervisor to a division manager” wasn’t protected. Pierce,

(citing Delon v. McLaurin Parking Co.,

(M.D.N.C.

2005), aff’d,

(4th Cir. 2005)). In that case, the plaintiff’s criticism of his

supervisor was largely unrelated to workplace safety. See Delon, 367 F. Supp. 2d at 896–

98 (noting that the plaintiff kept a notebook of complaints that “cover[ed] a wide range of

topics,” most of which didn’t concern safety, and that his criticism was focused on the

supervisor’s management and not any “concern over safety issues”).

We deduce from these authorities the following principles. Internal complaints

alleging ongoing OSHANC violations, like the ones in Bigelow and Jurrissen (and unlike

the one in Pierce, where the plaintiff proposed a way to comply with new safety rules but

didn’t allege any ongoing violations), can be protected. In assessing whether a particular

complaint is protected, we should also consider: whether it relates or leads to an

investigation, see Pierce,

; whether it’s made to someone other than the

plaintiff’s “supervisors or managers,” see id.; and whether workplace safety is a primary

16 focus of the complaint, see Delon,

(finding that criticism of a

supervisor that was mostly unrelated to workplace safety issues wasn’t protected by

REDA).

Driskell’s complaints about Rhyner meet these criteria. Driskell alleged OSHANC

violations: namely, Rhyner’s presence at the work site while intoxicated and his assault on

Driskell. See N.C. Gen. Stat. § 95–129(1) (requiring employees to furnish “a place of

employment free from recognized hazards that are causing or are likely to cause death or

serious injury or serious physical harm to [] employees”). These allegations led to Born’s

investigation into Rhyner’s drinking. Driskell complained frequently to Mr. Padgett, who

is Summit’s president and chief executive officer, not a mere supervisor or manager. And

workplace safety was the focus of Driskell’s complaints. Thus, REDA protects Driskell’s

complaints to Mr. Padgett.

C.

Summit also makes two arguments that are specific to Driskell’s second theory of

retaliation: namely, that Summit expected Driskell to file a workers’ compensation claim.

While Driskell’s first theory suffices to support the jury’s verdict on the merits (and its

compensatory-damages award), we address the second theory as well because it’s relevant

to evaluating Summit’s challenge to the punitive-damages award.

1.

First, Summit assails the district court’s jury instruction that “[i]t is against the law

for an employer to terminate an employee because the employer believes the employee will

file a workers’ compensation claim against the employer.” J.A. 1932 (emphasis added).

17 In Summit’s view, REDA’s text requires an employee to actually file or “threaten[] to” file

a workers’ compensation claim, see

(a). Because Driskell never

explicitly threatened to file a claim, Summit insists, his second theory of retaliation

shouldn’t have been submitted to the jury. Whether the jury instruction was correct is

another question of law that we review de novo.

We conclude that the jury instruction was correct, as no explicit threat by the

plaintiff is required. In Abels v. Renfro Corp., the Supreme Court of North Carolina

construed REDA’s predecessor statute—whose language was much narrower than

REDA’s 6—to prohibit an employer from firing someone because the employer

“anticipated her good-faith filing of a workers’ compensation claim.”

(N.C. 1993).

The plaintiff in Abels didn’t threaten to file a claim. See

. Rather, the

employer was aware that she had suffered an injury and that her doctor had requested that

she be given a leave of absence. Upon learning that, the employer discharged her “to

forestall the anticipated filing of a workers’ compensation claim.”

That was enough,

the Supreme Court held, to support the jury’s verdict for the plaintiff.

6 The predecessor statute read 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.”

(1991). REDA’s text is much broader, covering anyone who “threatens to” file a workers’ compensation claim.

(a).

18 The only difference between the Abels standard and the jury instruction in this case

is that the district court substituted “believe” for “anticipate.” This difference is

immaterial. The two words are analogous in that (1) they relate to the defendant’s

subjective expectation and (2) neither requires the plaintiff to have explicitly threatened to

file a claim. And REDA was meant to expand its predecessor’s protections, not narrow

them. Cf. Johnson v. Trs. of Durham Tech. Cmty. Coll.,

(N.C. Ct.

App. 2000) (explaining that REDA replaced the statute at issue in Abels and “expanded the

definition of retaliation to include” many types of adverse employment actions, not just

discharge and demotion). So, we must interpret REDA to prevent an employer from firing

an individual because it anticipates (or believes) that she will file a workers’ compensation

claim. The jury instruction was therefore proper.

2.

Additionally, Summit asserts that Driskell failed to exhaust his administrative

remedies as to his workers’ compensation theory because he didn’t raise that theory in his

complaint to the North Carolina Department of Labor, relying instead on his OSHANC

theory. We disagree.

Before bringing a REDA claim, a plaintiff must: “file a written complaint with the

Commissioner of Labor alleging [a REDA] violation,”

(a); obtain

a right-to-sue letter,

§§ 95-242(a), 95-243(a); and commence a civil action within ninety

days of the letter’s issuance, id. § 95-243(b). Driskell did that, so he exhausted his

administrative remedies. Since North Carolina law doesn’t require that a REDA suit be

based on the same theory of retaliation that supported the plaintiff’s administrative

19 complaint, Summit’s argument misses the mark. See id. § 95-243 (containing no such

requirement). 7

D.

Next, Summit maintains that no reasonable jury could have found causation, i.e.,

that Summit fired Driskell because of his complaints or because it believed that he would

file a worker’s compensation claim. Instead, Summit posits, it fired Driskell for a

legitimate reason: his violations of company policy, including insubordination, cursing and

fighting his supervisor, and taking two days off when he had no leave available.

Summit is wrong. There was ample evidence to support causation with respect to

both of Driskell’s retaliation theories, including: Summit’s internal emails strategizing

about how to fire Driskell so as to avoid the appearance of illegality; the Padgetts’

characterization of his complaints as a “scam,” J.A. 2698, and as preparation for a “bogus

lawsuit,” J.A. 2699; Born’s lackluster investigation of Driskell’s complaints and comment

that he needed to “grow a pair of balls,” with which Mr. Padgett agreed, J.A. 2585;

Summit’s failure to punish Rhyner for fighting with Driskell; and Mrs. Padgett’s general

hostility toward OSHANC accident reports and workers’ compensation claims.

Indeed, the evidence of causation here is stronger than in Abels, where the Supreme

Court of North Carolina held that the record supported an inference of retaliation.

. There, the plaintiff showed only that she was a good employee and that she

7 In any event, Driskell arguably raised his workers’ compensation theory in his complaint by stating that he was fired because he “became a threat, risk or liability to the company after Mr. Rhyner attacked [him].” J.A. 78.

20 was discharged shortly after her employer learned of her injury. See Abels v. Renfro Corp.,

, 483–84 (N.C. Ct. App. 1992) (summarizing the plaintiff’s evidence), aff’d

in part and rev’d in part on other grounds,

(N.C. 1993). In contrast,

Driskell presented direct evidence of retaliatory animus.

There’s also no contemporaneous evidence corroborating Summit’s explanation for

why it fired Driskell. Thus, a reasonable jury “could infer from the late appearance of

[Summit’s] current justification that it is a post-hoc rationale, not a legitimate explanation

for [its adverse employment] decision.” EEOC v. Sears Roebuck and Co.,

(4th Cir. 2001).

E.

Next, Summit asserts that it was entitled to judgment on Driskell’s wrongful-

discharge claim because Driskell never filed or threatened to file an OSHA or workers’

compensation claim. Summit is mistaken.

As Summit recognizes, Driskell’s “wrongful termination claim rises or falls on the

viability of [his] REDA-based claim.” Lockie v. Staples Contract & Com., Inc., No. 3:14-

CV-521,

, at *3 (W.D.N.C. Jan. 7, 2015). This is because “wrongful

discharge claims have been recognized in North Carolina where the employee was

discharged . . . for engaging in a legally protected activity,” like complaining about

OSHANC violations. Combs v. City Elec. Supply Co.,

(N.C. Ct. App.

2010) (cleaned up). Thus, just as we affirm the verdict for Driskell on his REDA claim, so

too do we affirm the verdict on his wrongful-discharge claim.

F.

21 Finally, Summit asserts that the jury’s award of punitive damages for Driskell’s

wrongful-discharge claim wasn’t supported by the record. We disagree.

Punitive damages are available in wrongful-discharge claims under North Carolina

law. See Roberts v. First-Citizens Bank and Trust Co.,

(N.C. Ct.

App. 1996) (affirming punitive-damages award). They’re only proper, however, where

there’s “clear and convincing evidence” that the defendant’s conduct involved fraud,

malice, or willful or wanton conduct. Scarborough v. Dillard’s, Inc.,

(N.C. 2009) (citing N.C. Gen. Stat. § 1D–15(a)).

“Malice” in this context means “a sense of personal ill will toward the claimant that

activated or incited the defendant to perform the act or undertake the conduct that resulted

in harm to the claimant.” N.C. Gen. Stat. § 1D-5(5). “Willful or wanton conduct” is

defined as “the conscious and intentional disregard of and indifference to the rights and

safety of others, which the defendant knows or should know is reasonably likely to result

in injury, damage, or other harm.” Id. § 1D–5(7)). It “means more than gross negligence.”

Id. And, “[w]hen punitive damages are sought against a corporation, the claimant must

further show that ‘the officers, directors, or managers of the corporation participated in or

condoned the conduct [involving fraud, malice, or willful or wanton conduct] giving rise

to punitive damages.’” Id. (citing N.C. Gen. Stat. § 1D–15(c)).

“The clear and convincing standard requires evidence that should fully convince.”

Scarborough,

(cleaned up). “This burden is more exacting than the

‘preponderance of the evidence’ standard generally applied in civil cases, but less than the

‘beyond a reasonable doubt’ standard applied in criminal matters.”

In reviewing a

22 jury’s punitive damages award, we must determine whether “a jury could reasonably find”

that the claimant met this exacting burden.

.

Here, a reasonable jury could be fully convinced that, in firing Driskell, Summit’s

executives (namely, the Padgetts) acted with malice toward Driskell or with a conscious

disregard for his right to engage in activity protected by REDA. As for malice, Mrs.

Padgett’s emails about Driskell bespeak ill will toward him. She referred to his injuries as

a “joke,” J.A. 1631, and repeatedly accused him and his father of orchestrating a “scam,”

J.A. 2698, and a “bogus lawsuit,” J.A. 2699. A jury could also find that the Padgetts’

refusal to seriously investigate Driskell’s allegations or punish Rhyner for assaulting

Driskell reflected animus toward Driskell. Further, both of the Padgetts were on an email

chain in which Born acknowledged that he and Fudge “would have personal motivations

to [f]ire” Driskell, J.A. 2701, suggesting that the Padgetts may have “condoned [] conduct”

involving malice, see N.C. Gen. Stat. § 1D-15(c).

The same evidence supports a finding of willful or wanton conduct. So too does

Mr. Padgett’s agreement with Born’s view that Driskell needed to “grow a pair of balls”

and stop complaining about Rhyner’s drinking. J.A. 2585. That statement shows a

conscious disregard for Driskell’s right to allege an OSHANC violation. Similarly, Mrs.

Padgett’s hostility toward accident reports and workers’ compensation claims indicates an

indifference to the rights and safety of others.

In sum, while the clear-and-convincing standard is “exacting,” Scarborough,

, a reasonable jury could find that Driskell met it.

23 III.

We turn now to Driskell’s cross-appeal, which raises two issues.

A.

First, Driskell argues that the district court erred by not amending the jury’s award

of $65,000 in compensatory damages. In his view, the award should have been $134,038

(before trebling), reflecting the full amount of back pay that he was owed.

Driskell failed to preserve this issue in the district court, however. Motions to

amend a judgment “must be filed no later than 28 days after the entry of the judgment,”

Fed. R. Civ. P. 59(e), and a court may not extend that deadline, Fed. R. Civ. P. 6(b)(2).

Driskell filed his back-pay request 38 days after the judgment was entered (in a response

to one of Summit’s motions) rendering the request untimely and thereby forfeiting

appellate review of this issue. See Alston v. MCI Commc’ns Corp.,

(4th

Cir. 1996) (dismissing an appeal because the appellant had failed to file a post-trial motion

within the requisite time period); see also Belk, Inc. v. Meyer Corp.,

(4th

Cir. 2012) (“Belk’s failure to move pursuant to Rule 50(b) forfeits the sufficiency of the

evidence challenge on appeal.”).

B.

Driskell also insists that he shouldn’t have been required to choose between the

punitive-damages verdict (which arose from his wrongful-discharge claim) and the award

of attorney’s fees (which arose from his REDA claim). We agree.

Under North Carolina’s “doctrine of election of remedies,” “a plaintiff may not

recover inconsistent remedies” or ones that would provide “double redress for a single

24 wrong.” United Labs.,

(cleaned up). Punitive damages and attorney’s

fees are not inconsistent remedies.

Whether they are duplicative turns on whether they

“serve different interests and are not based on the same conduct.”

. 8

Without question, the two awards serve “wholly different” interests. Id.; accord

Lacey v. Kirk,

, 650 (N.C. Ct. App. 2014). “Punitive damages are designed

to punish willful conduct and to deter others from committing similar acts,” United Labs.,

, while “an award of attorneys’ fees is intended to address costs that arise

in the course of the litigation of a particular case,” Lacey, 767 S.E.2d at 650. And although

REDA doesn’t explain why it authorizes fee awards for plaintiffs, we infer that it does so

“to encourage private enforcement of” its ban on discriminatory and retaliatory

employment practices, not to punish defendants. See United Labs.,

8 Our dissenting colleague would hold that N.C. Gen. Stat. § 1D-20 effectively overruled United Labs’ “mix-and-match approach” and thus blocks Driskell from recovering both awards. Dissent at 31. But that provision—which was enacted in 1995 in an act establishing standards for punitive damages, N.C. Sess. Laws 1995-514, H.B. 729, and has never been construed to apply to attorney’s fees—requires claimants to elect “between punitive damages and any other remedy pursuant to another statute that provides for multiple damages.” N.C. Gen. Stat. § 1D-20. It’s true that Driskell’s request for attorney’s fees is “pursuant to” REDA, which provides for treble damages. But we think it doubtful that the Supreme Court of North Carolina would hold that REDA’s separate allowance for an award of attorney’s fees is a “remedy” in the way that § 1D-20 uses that term. After all, § 1D-20’s title is “Election of extracompensatory remedies,” and attorney’s fees are strictly compensatory in that they reimburse a prevailing plaintiff’s costs. The title of a statutory subsection, while “not controlling, [] does shed some light on the legislative intent underlying the enactment of that provision.” State v. Fletcher,

(N.C. 2017). And that light is (we think) sufficient here to reject the dissent’s view.

25 (explaining why a statute banning unfair methods of competition authorized awards of

attorney’s fees for successful plaintiffs) (cleaned up).

Further, (and contrary to the dissent’s view) the two awards “are not based on the

same conduct.”

To recover punitive damages, Driskell had to prove that Summit’s

conduct involved fraud, malice, or willful or wanton conduct. See N.C. Gen. Stat. § 1D–

15(a). In contrast, REDA gives the trial court discretion to award fees and costs to a

prevailing plaintiff—irrespective of the defendant’s conduct—provided the plaintiff can

show that such fees and costs are reasonable.

(c). And while

North Carolina courts have had little occasion to apply this standard in the context of

REDA claims, we think the familiar test for reasonableness applied elsewhere governs

here. 9 See United Labs.,

(directing trial court, in considering the

reasonableness of a fee award for a plaintiff prevailing on a unfair competition claim, to

make findings “as to the time and labor expended, the skill required, the customary fee for

like work, the experience or ability of the attorney, the novelty and difficulty of the

9 The district court mistakenly applied the federal lodestar standard in calculating a fee award. We have held (albeit in an unpublished opinion) that state law, not the federal lodestar test, should control in in this circumstance. See Peter Farrell Supercars, Inc. v. Monsen,

(4th Cir. 2003) (“Because the district court granted fees pursuant to a Virginia statute, we look to Virginia’s standards for determining if the fee award is reasonable.”). Other circuits agree that when state law supplies the law of decision in a diversity case, state law also controls both whether to award reasonable attorney’s fees and what standard to apply in calculating that award. See 17A Moore’s Federal Practice- Civil § 124.07(3)(b) (2020) (citing opinions from the 1st, 2d, 3d, 5th, 6th, 7th, 8th, 9th, 10th, and 11th Circuits standing for this proposition). But because Summit raises no issue on appeal as to the reasonableness of the attorney’s fee award, we do not address it further.

26 questions of law, the adequacy of the representation, the difficulty of the problems faced

by the attorney, especially any unusual difficulties, and the kind of case for which the fees

are sought and the result obtained.”) (cleaned up).

In sum, because recovery of attorney’s fees under REDA requires proof different

from that which gives rise to punitive damages, and the awards don’t arise from the same

course of conduct, Driskell can collect both. The district court erred in holding otherwise.

IV.

For the reasons given, we reverse that portion of the district court’s order (and vacate

the related judgment) requiring Driskell to choose between punitive damages and

attorney’s fees, and remand for the district court to enter judgment for Driskell for punitive

damages, attorney’s fees, and untrebled compensatory damages.

AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED

27 TRAXLER, Senior Circuit Judge, concurring in part and dissenting in part:

I concur in the majority’s rejection of the issues raised by Summit in its appeal. As

to Driskell’s cross-appeal, I agree that Driskell failed to preserve for appeal his challenge

to the amount of back-pay awarded by the district court, and I concur in that portion of the

majority’s opinion as well. In my view, however, the district court did not err in requiring

Driskell to choose between the remedies available on his common-law wrongful-discharge

cause of action and the remedies available on his statutory retaliatory-discharge claim. I

therefore dissent from that aspect of the majority’s decision.

I.

The jury awarded Driskell $65,000 in actual damages on his REDA claim and on

his wrongful-discharge claim, and $681,000 (reduced to the statutory maximum of

$250,000) in punitive damages on the wrongful-discharge claim. On the election-of-

remedies question, Driskell contended that under United Laboratories, Inc. v. Kuykendall,

(N.C. 1993) (“United Labs”), he was entitled to recover the punitive

damages awarded on the wrongful-discharge claim, along with untrebled actual damages

and attorney’s fees under REDA. The district court rejected that approach and accepted

Driskell’s second choice of recovering the remedies available under REDA -- $65,000

actual damages trebled to $195,000, plus attorney’s fees. The district court awarded

attorney’s fees of just over $441,000, giving Driskell a total award of $636,000. If the

district court had accepted Driskell’s first choice, Driskell would have received $756,000.

On appeal, Driskell continues to pursue his first choice, arguing that he is entitled

to $756,000 under the approach set out in United Labs. The majority, concluding that

28 punitive damages and the fee award were based on different conduct and serve different

interests, holds that the district court erred under United Labs by requiring Driskell to elect

between punitive damages and attorney’s fees. I believe the district court correctly

resolved the issue.

II.

A.

One of the purposes of the doctrine of election of remedies is to prevent “double

redress for a single wrong.” Smith v. Gulf Oil Corp.,

(N.C. 1954). In

cases where a single set of facts supports a common-law claim and a statutory claim, North

Carolina courts have applied the doctrine to hold that the plaintiff may recover under one

cause of action or the other, but not both. See Ellis v. N. Star Co.,

(N.C. 1990) (“The company contends that it should be entitled to both punitive damages

for the libel and the treble damages automatically assessed under N.C.G.S. § 75–16. We

disagree. The libel and unfair trade claims both arose from the defendants’ letter. Plaintiffs

may in proper cases elect to recover either punitive damages under a common law claim

or treble damages under N.C.G.S. § 75–16, but they may not recover both.”); Wilder v.

Hodges,

(N.C. Ct. App. 1986) (“When the same course of conduct

supports claims for fraud and for an unfair or deceptive trade practice under Chapter 75,

recovery can be had on either claim, but not on both.”); Marshall v. Miller,

(N.C. Ct. App. 1980) (“Where the same course of conduct gives rise to a traditionally

recognized cause of action, as, for example, an action for breach of contract, and as well

gives rise to a cause of action for violation of G.S. 75-1.1, damages may be recovered either

29 for the breach of contract, or for violation of G.S. 75-1.1, but not for both.”). These cases

thus require a plaintiff to choose which cause of action or path to recovery on which he

will proceed and permit him to recover only those remedies available on the chosen path.

In United Labs, however, the North Carolina Supreme Court departed from the

approach outlined above and allowed a plaintiff to pick and choose from the remedies

available on his common-law and statutory causes of action. See United Labs,

(“Heretofore, it has been the practice in this state to require the plaintiff to recover

either the Chapter 75 statutory group of remedies (trebled compensatory damages and

discretionary attorneys’ fees) or the group of remedies available in the common law claim

(compensatory and punitive damages).”) (Meyer, J., concurring in part and dissenting in

part).

In United Labs, the court permitted the plaintiff to recover punitive damages

available under his common-law cause of action, as well as additional remedies available

under N.C. Gen. Stat § 75–1.1(a), a statutory treble-damages scheme prohibiting unfair or

deceptive acts and practices affecting commerce, as long as the remedies were neither

inconsistent nor duplicitous. Under that approach, the court held that the plaintiff could

recover punitive damages on his tort claim along with actual (untrebled) damages and

attorney’s fees under the unfair-practices statute. The court held that the untrebled actual-

damage award and punitive-damage award were not duplicitous because they did not

redress the same wrong. See United Labs,

. As to attorney’s fees, the

court held they were not duplicitous because the punitive-damage award and fee award

were based on different conduct:

30 [The] conduct which gives rise to an award of attorneys fees is not the same conduct that gives rise to an award of punitive damages. To recover punitive damages at common law a plaintiff must show that the defendant acted in a willful or oppressive manner. Hardy v. Toler,

,

. To recover attorneys fees for unfair practices, however, the plaintiff must also show that “there was an unwarranted refusal by [the defendant] to fully resolve the matter which constitutes the basis of ... the suit.” N.C.G.S. § 75– 16.1(1). Since recovery of attorneys fees requires proof different from that which gives rise to punitive damages, the claims do not arise from “the same course of conduct.” Marshall,

,

.

United Labs,

.

Driskell relies on United Labs when seeking to mix and match the remedies

available on his separate causes of action. In my view, however, United Labs’ mix-and-

match approach was legislatively overruled by N.C Gen. Stat. § 1D-20, which was enacted

a few years after the case was decided. 1

Section 1D-20 is part of an act passed in 1995 that limited the circumstances under

which punitive damages could be awarded and placed a cap on the amount of punitive

damages that could be awarded. See 1995 North Carolina Laws Ch. 514 (H.B. 729). The

provisions of the 1995 act “appl[y] to every claim for punitive damages, regardless of

whether the claim for relief is based on a statutory or a common-law right of action or

based in equity,” and “prevail over any other law to the contrary.” N.C. Gen. Stat. § 1D-

1 Although § 1D-20 was not raised by the parties, we may affirm the district court on any reason appearing in the record. See McMahan v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers,

(4th Cir. 1992) (“We of course have the power to affirm a judgment for any reason appearing on the record, notwithstanding that the reason was not addressed below.”).

31 10. Because Driskell sought punitive damages on his common-law wrongful-discharge

claim, that punitive-damage claim is governed by the 1995 act, including § 1D-20.

Section 1D-20 provides that “[a] claimant must elect, prior to judgment, between

punitive damages and any other remedy pursuant to another statute that provides for

multiple damages.” N.C. Gen. Stat. § 1D-20. In my view, the import of this language is

clear. A plaintiff with a claim that supports an award of punitive damages on one cause of

action as well as recovery under a multiple-damages statute must choose his path of

recovery – he must “elect . . . between” either punitive damages or “any other remedy”

available under the multiple-damages statute. Id. A plaintiff who chooses to recover any

of the remedies available on the statutory multiple-damages claim cannot also recover

punitive damages on a different claim based on the same facts. The statute thus returns to

the pre-United Labs approach applied in Ellis and Marshall. The plaintiff must choose one

path of recovery, either the statutory multiple-damages claim or the claim that includes

punitive damages, and the plaintiff’s recovery is limited to the remedies authorized for the

chosen cause of action. If he wants to collect the award of punitive damages, he cannot

collect any of the remedies available under the multiple-damages statute.

Although § 1D-20 is titled “Election of extracompensatory remedies,” its reach is

not strictly limited to the kinds of remedies that might be classified as

“extracompensatory.” An award of punitive damages is extracompensatory, as is an award

of statutorily multiplied actual damages. However, § 1D-20 does not say that a plaintiff

choosing a punitive-damages award may not recover extracompensatory remedies under a

multiple-damages statute; § 1D-20 says that a plaintiff choosing a punitive-damages award

32 may not recover any of the remedies available under a multiple-damages statute, including

the purely compensatory (unmultiplied) actual-damage award.

“In North Carolina, a trial court may award attorney’s fees only as authorized by

statute.” Winkler v. N.C. State Bd. of Plumbing,

, 210 (N.C. 2020). Whether

an award of attorney’s fees might be characterized as compensatory or extracompensatory,

there is little question that an award of attorney’s fees authorized by statute is a remedy

pursuant to that statute, as required under § 1D-20. See, e.g., Buford v. Gen. Motors Corp.,

(N.C. 1994) (“Attorney’s fees are available as a remedy under

N.C.G.S. § 20–351.8(3) . . . .”); Minneman v. Martin,

(N.C. Ct. App.

1994) (“The Act goes beyond merely allowing suit, however, and provides various

remedies for the injured employee, including injunctive relief, damages, attorney’s fees,

and, in some cases, treble damages.”) (citing N.C. Gen. Stat. § 126–87). Thus, if a

multiple-damage statute authorizes an award of attorney’s fees, that is one of the remedies

that a plaintiff must forgo if he chooses to recover on his punitive-damage claim.

North Carolina courts have given scant attention to § 1D-20, and neither of the

State’s appellate courts have considered the operation of the statute. 2 In my view, however,

the language of the statute is clear and unambiguous and prohibits a plaintiff from

recovering punitive damages while also recovering any of the remedies available under a

2 Although North Carolina courts have applied United Labs in cases that I believe could have been resolved under § 1D-20, there is no indication the statute was raised in those cases. See, e.g., Waldon v. Burris,

at *3 (N.C. Ct. App. 2007) (unpublished); Brown v. King,

(N.C. Ct. App. 2004).

33 multiple-damages statute. Applied to this case, my reading of § 1D-20 leads to same

conclusion reached by the district court. Driskell is entitled to proceed under his wrongful-

discharge claim, which permits punitive damages but not attorney’s fees, or to proceed

under his REDA claim, which permits attorney’s fees but not punitive damages. He cannot,

however, mix and match the remedies available under the separate claims.

B.

In any event, even if § 1D-20 has no effect on United Labs, I do not believe United

Labs controls the disposition of this case.

As discussed above, the court in United Labs held that the punitive-damage award

and fee award in that case were not duplicitous because the “conduct which gives rise to

an award of attorneys fees is not the same conduct that gives rise to an award of punitive

damages.” United Labs,

. The punitive-damages claim required the

plaintiff to prove that “the defendant acted in a willful or oppressive manner,” while the

statutory attorney-fee award required further proof “‘that there was an unwarranted refusal

by [the defendant] to fully resolve the matter which constitutes the basis of . . . the suit.’”

at 379-80 (quoting N.C. Gen. Stat. § 75–16.1(1)). As this portion of the opinion makes

clear, United Labs did not hold that punitive-damage awards and fee awards are always

based on different conduct for election-of-remedies purposes. Instead, the court explicitly

grounded its different-conduct decision on the additional fact the defendant’s unwarranted

refusal to fully resolve the claim -- that was statutorily required in that case to establish a

claim for attorney’s fees.

34 In this case, however, there is no additional statutory factor required to support a fee

award. REDA simply provides that “[t]he court may award to the plaintiff and assess

against the defendant the reasonable costs and expenses, including attorneys’ fees, of the

plaintiff in bringing an action pursuant to this section.”

.

Because attorney’s fees may be awarded in any case where a REDA violation is

established, it seems clear to me that, as the district court held, the conduct giving rise to

the punitive-damages claim in this case is the very same conduct that gave rise to the fee

award.

Although the award of punitive damages required Driskell to prove fraud, malice,

or willful or wanton conduct, the evidence proving the wrongful discharge and establishing

Summit’s liability for punitive damages was the same evidence that proved the REDA

violation and authorized the award of attorney’s fees. Driskell was also required to show

the reasonableness of the fee award sought, which required the court to consider the

traditional factors, such as the time expended by counsel and the customary fees for similar

cases Those factors, however, are not relevant to the election-of-remedies question. As

the court made clear in United Labs, the question is whether the “conduct which gives rise

to an award of attorneys fees is . . . the same conduct that gives rise to an award of punitive

damages.” United Labs,

(emphasis added). The court thus considered

whether the conduct of the defendant that triggered liability for punitive damages was the

same conduct that triggered liability for attorney’s fees. The factors showing the

reasonableness of the requested fees do not focus on the conduct of the defendant and have

nothing to with the threshold question of whether the defendant engaged in conduct that

35 gave rise to an award of attorney’s fees. Accordingly, the factual predicate for the United

Labs approach – different conduct supporting the fee award – is absent in this case.

In reaching its conclusion, the United Labs court noted that punitive damages and

fee awards serve different interests, see

, an observation that can likewise

be made in this case. That the awards serve different interests, however, is not sufficient;

under United Labs, the awards must also involve different conduct. See Stanley v. Moore,

(N.C. 1995) (describing United Labs as permitting the recovery of

punitive damages under a common-law cause of action and attorney’s fees under a statutory

unfair-practices claim “where [the] recoveries serve different interests and are not based

on the same conduct”) (emphasis added); United Labs,

(holding that

election of remedies was not required because the “recoveries serve different interests and

are not based on the same conduct”) (emphasis added).

Because the same conduct that gave rise to Summit’s liability for punitive damages

on Driskell’s wrongful-discharge claim also gave rise to the REDA violation and triggered

the award of attorney’s fees under REDA, I do not believe that United Labs governs the

disposition of this case. Absent the factual basis justifying application of United Labs’

approach, this case should be governed by North Carolina’s traditional approach to

election-of-remedies questions set out in Ellis, Wilder, and Marshall. Under that approach,

Driskell was required to pick a single path to recovery, either wrongful discharge or REDA,

and was entitled to receive only the remedies available on the chosen path. Punitive

damages are available on Driskell’s common-law wrongful-discharge claim, but attorney’s

fees are not. Conversely, attorney’s fees are available under REDA, but punitive damages

36 are not. Under the circumstances of this case, I do not believe the district court erred by

requiring Driskell to choose between the total recovery permitted under the wrongful-

discharge claim or the total recovery permitted under REDA.

III.

Because I believe the district court properly resolved all of the issues raised in

Summit’s appeal and Driskell’s cross-appeal, I would affirm the district court’s judgment

in its entirety. Accordingly, while I concur in sections I, II, and III.A of the majority

opinion, I respectfully dissent from the majority’s conclusion in section III.B that under

United Labs, Driskell is entitled to recover punitive damages on his wrongful-discharge

claim and attorney’s fees on his REDA claim.

37