Wrongful Employment Termination

Charles Kidd

Wrongful Termination – Workers Compensation Discrimination and Retaliation

Our client, Charles Kidd, was terminated by EXCO, a Texas-based gas well company, after twenty years of employment. His termination followed a work accident and his filing of a workers compensation claim. When Mr. Kidd contacted us, he stated that he was told the reason for his termination was that he had two other work accidents within twelve months and that a third accident put him in violation of company policy. However, when he pointed out that he only had one other accident within twelve months, EXCO said it terminated him for failure to timely report his work accident. Under West Virginia Code §23-5A-3(a) an employer may not terminate an employee in retaliation for filing a workers compensation claim and we sued EXCO alleging that they did just that.

EXCO’s conflicting information as to the reason(s) for Mr. Kidd’s termination was a red flag. When employers give conflicting reasons for a termination, it can mean that the reasons are a mere pretext for a hidden discriminatory or retaliatory motive. In this instance, Mr. Kidd’s company ATV rolled over on him while he was tending an EXCO well in rough terrain. He immediately called his supervisor to report a serious leg injury. It was late on a Friday and the supervisor told Mr. Kidd not to report the accident, but rather to go home to see if the leg felt better over the weekend. The leg injury, however, got worse and Mr. Kidd had to report to a hospital emergency room on Saturday. On the following Monday, he notified his employer that he needed to make a workers compensation claim. At that point, EXCO notified him that they were “investigating” the incident.

EXCO notified Mr. Kidd that it had concluded its investigation and that he was being terminated for being in violation of company accident policy (3 accidents within 12 months). The supervisor to whom Mr. Kidd reported the accident on the day of the accident was suspended for not timely reporting the accident to EXCO, but kept his job. Mr. Kidd came to us and after hearing his story and reviewing the documents provided to him by EXCO, we immediately filed suit against EXCO for workers compensation discrimination under West Virginia Code §23-5A-3(a).

In discovery, we were immediately able to establish that Mr. Kidd had not violated company accident policy. Of the other two accidents in which has involved, only one occurred within the company’s 12-month time frame. Therefore, terminating Mr. Kidd, while only suspending the supervisor who instructed Mr. Kidd to not report his accident, constituted disparate and unfair treatment. We argued that the only explanation for terminating Mr. Kidd and not terminating the supervisor was Mr. Kidd’s reportable workers compensation accident that would increase EXCO premiums.

In litigation, EXCO asserted Mr. Kidd was terminated for unsafe practices. However, EXCO’s own internal report on Mr. Kidd’s rollover accident showed that it was not Mr. Kidd’s fault and that EXCO had been on notice of the need to improve conditions for its gas well tenders to eliminate the conditions that caused Mr. Kidd’s rollover accident. Based exclusively on paper discovery in the case, we were able to put together a settlement demand report that caused EXCO to request early mediation so as to avoid having its corporate representatives placed under oath in depositions.

Our economist, Dan Selby, prepared a report putting Mr. Kidd’s net present value of lost income and benefits at $741,612.00. Mr. Selby also examined the financial position of EXCO Resources, Inc., for the purpose of permitting us to seek punitive damages. We cited the case of Peters v. Rivers Edge Min., Inc., 224 W.Va. 160, 680 S.E.2d 791 (2009), which sets forth an analysis of West Virginia law pertaining to the award of punitive damages in employment retaliation cases arising under West Virginia Code §23-5A-3(a). Based on EXCO’s financial position, as set forth in Mr. Selby’s report, we argued that EXCO could easily pay a punitive damage award based on a multiple of five to ten times the $741,612.00 economic loss suffered by Mr. Kidd.

Wrongful termination cases are unique because the loss of a job not only has dire economic consequences, but also serious psychological implications. The self-image of many people is tied up in what they do for a living. When that self-image and the camaraderie of relationships with co-workers, especially in jobs that people have held for many years, is taken away, it can devastate a person’s life. The circumstances that give rise to this case turned the lives of Charles Kidd, his wife, Vickie, and their family, upside down. We conveyed to EXCO those human, emotional and psychological harms and losses.

Result: Substantial Confidential Settlement.

CHARLES W. KIDD v. EXCO RESOURCES, LLC, Circuit Court of Wyoming County, West Virginia, Civil Action No.: 13-C-196