Chadrick D. Mosley, Plaintiff,
Alpha Oil and Gas Services, Inc., a North Dakota Corporation, et al., Defendant
For Chadrick D. Mosley, Plaintiff: Jonathan P. Norrie, LEAD ATTORNEY, BASSFORD REMELE, MINNEAPOLIS, MN.
For Alpha Oil and Gas Services, Inc., a North Dakota corporation, Defendant: Robert J. Udland, Vanessa L. Anderson, VOGEL LAW FIRM, FARGO, ND.
Charles S. Miller, Jr., United States Magistrate Judge.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING LEAVE TO AMEND COMPLAINT TO ASSERT CLAIM FOR PUNITIVE DAMAGES
Before the court are defendant's motion for summary judgment (Doc. No. 24) and plaintiff's motion to amend his complaint to add a claim for punitive damages (Doc. No. 26). For the reasons set forth below, defendant's motion is denied and plaintiff's motion is granted.
In September 2011, plaintiff Chadrick Mosley, an Oklahoma resident, began work for defendant Alpha Oil and Gas Services, Inc. (" Alpha" ) on a leg of the Garden Creek pipeline extending west from Watford City, North Dakota into Montana. Alpha is a North Dakota corporation that does pipeline construction and service work, including construction of new oil and gas pipelines in North Dakota's oil fields. Alpha's home office is located in Clearbrook, Minnesota.
Mosley obtained his job with Alpha through the assistance of his father, Chester Mosley, who had hired on with Alpha several months earlier and was working as a shop foreman at Alpha's shop in Watford City. One of his father's duties as shop foreman was to order supplies and make them available for Alpha's crews, including, as will become relevant in this case,
work safety equipment such as gloves, safety vests, hard hats, and taglines.
Within two to three weeks after being hired as a laborer, Mosley was promoted to " straw boss" on the pipe-bending crew that bent the pipe so it could follow the contour of the land when buried. The crew that Mosley worked on was comprised of 4 or 5 persons. The crew foreman was Kenneth Sims. Underneath him was Mosley, who was the straw boss. In addition, there was at any one time between 2 or 3 laborers. Mosley testified in his deposition that his duties as straw boss included taking the lead on the work being performed, completing safety reports for the morning safety meetings, and keeping the crew's time records.
One of the work activities that Mosley and the laborers on his crew would routinely perform involved guiding pipe that had been raised into the air by a side boom over to the bending machine and then, after the pipe was bent, guiding the suspended pipe to the location where it would be installed. In the trade, the process of moving the suspended pipe is referred to as " swamping."
As will be discussed in more detail later, OSHA regulations require that persons swamping suspended pipe use " taglines," which are ropes or cables that allow the person to guide the suspended pipe from a distance so that they are protected from injury should the pipe fall or swing out of control. Mosley contends that taglines were not being provided to his crew and that he complained about this on several occasions, to both foreman Sims and the Garden Creek project superintendent, Paige Quick. Mosley claims that, when he made these complaints, Sims would say he did not want to get involved and that Quick's response essentially was that taglines would only slow down the work and that, if the inspectors were present, he should throw a rope around the pipe and, if they were not, he and his crew should simply guide the pipe with their hands and get it swamped as fast as possible.
Mosley also contends that he complained to both Sims and Quick about the lack of colored safety vests, which OSHA regulations require when construction workers are working in a road right-of-way so that they are more visible and stand out to traffic and operating equipment. Mosley testified that foreman Sims again stated he was not going to get involved and that Quick told him that all of the vests they had were being used and that they were not going to get anymore.
Mosley claims he was injured on November 3, 2011, while swamping a section of pipe out of the bending machine by hand without a tagline. Mosley claims the pipe became unbalanced causing him to be thrown into the air and then land on the ground, injuring his neck, shoulders and back. Mosley states he continued working that day and for the next several days despite being stiff and sore. Mosley states that, when he did not get any better and his neck became more stiff, he insisted on going to a doctor to get checked out, despite Sims urging him to keep working because they were shorthanded. Mosley claims the doctor advised him not to work for a period of time and allow his injuries to heal.
When Mosley went to the doctor, he reported that his injury was work-related and he completed a form for obtaining workers' compensation benefits provided to him at the hospital. Mosley testified that the form was one of several that the hospital stated he needed to fill out and that he was not aware it was an actual application for benefits. In any event, when Mosley returned to Alpha's office and advised he could not immediately return to work, he and the owner of Alpha came to an agreement whereby, in lieu of
Mosley claiming workers' compensation benefits, Alpha would pay his medical expenses as well as two hours a day " show up" pay and per diem until he could return to work. 
Mosley returned to work on November 29, 2011. According to Mosley, Quick's attitude towards him changed upon his return from being friendly to hostile. According to Mosley, this included Quick rhetorically asking on the day of his return what was going to happen if Mosley claimed an injury again and whether they would have to care for his eight children. Mosley interpreted this remark to mean that Quick was of the belief that Mosley would seek a bunch of money.
Mosley also claims that he inquired of Quick in a subsequent conversation about whether his medical bills had been paid. According to Mosley, Quick responded by telling him that Alpha was not going to pay anything more. Mosley claims he then stated to Quick that he would have to file a claim with workers' compensation to get his bills paid. Mosley alleges in his complaint that this conversation took place on the night prior to his being fired, which would have been December 5, 2011, and both parties in their briefing assume this is when Mosley claims it took place. In reviewing Mosley's deposition testimony, however, this is not so clear. At one point, Mosley appears to state that the conversation took place the day after he returned to work, which would have been November 30, 2011, some six days prior to his termination.
Mosley also claims there was an occasion after he had returned to work when he stopped into the shop to see his father and present were both superintendent Quick and Alpha's project manager for the Garden City pipeline, Torsten Leines. Mosley claims he overheard Quick advise his father not to order any more gloves, hard hats, safety vests, or signs and, if signs were needed, to make them out of scrap lumber. Mosley claims he checked with his father about ordering more safety supplies the day prior to his termination and his father advised that he could not order anything more because Alpha had taken away his credit card.
On December 6, 2011, a subcontractor working for Alpha on the Garden City project hit a power line while operating a backhoe without a spotter. Alpha's " home office" safety director, David Vasilakes happened to be present in Watford City on that day along with another safety person to conduct first aid training. After looking into the incident, Vasilakes decided to call a general safety meeting that evening for all of Alpha's employees who were working in the area. The meeting was held in Alpha's multi-bay shop in Watford City, where Mosley's father was the shop foreman. Most of the witnesses agree that upwards of 40 or more persons were in attendance, including Mosley and his pipe bending crew, Mosley's father, superintendent Quick, and project manager Leines. In order to conduct the meeting, Vasilakes positioned himself partway up an open stairway in the shop so he could be seen
and heard by the large number of persons gathered for the meeting.
There is sharp conflict between Mosley's evidence and Alpha's evidence as to what happened next. Mosley testified in his deposition that Vasilakes started the meeting by talking about the incident that had occurred with the subcontractor and then opened up the meeting for employees to raise any safety concerns that they may have, stating that anyone who did so would not face any adverse consequences. Mosley claims he spoke up and complained that Alpha was no longer providing safety gloves, hard hats, and safety vests. He also claims that he spoke out about the lack of taglines, the fact this was a big safety hazard and he had been injured because of the lack of taglines, and that taglines are required by OSHA's regulations. He also claims he complained that Alpha had stopped providing cases of water on the jobsite. Mosley states it was after he raised these subjects that superintendent Quick walked to the back of the room where Mosley was standing and stated as loud as he could to Mosley: " It's not your f'ing problem no more because you're fired."
Mosley acknowledges that he became very angry and physically confronted Quick after he was fired, including head-butting Quick. Mosley also acknowledges that his father had to drag him out of the shop after he was separated from Quick. Mosley contends that Vasilakes later came up to him outside the shop and told him he should not have been fired and that he could sue.
Mosley's account of what happened inside the shop during the meeting is substantially supported by an affidavit from his father and a written declaration made under penalty of perjury from Luke Thompson, one of Mosley's crew members. Neither of these two witnesses, however, purports to have been privy to the conversation that Mosley claims he had with Vasilakes after the meeting.
The evidence presented by Alpha presents a much different picture. Alpha has proffered deposition testimony from Vasilakes along with his written report of the meeting, deposition testimony from five other persons who were present during the safety meeting (most of whom had previously given a written statement), and an affidavit from former superintendent Quick.  While the accounts of these persons vary somewhat with respect to the amount of detail provided and their level of recall, the general picture presented by Alpha's evidence is that: Mosley began arguing with Vasilakes about Alpha not providing work gloves and that Vasilakes told Mosley he would look into it, but Mosley continued to rant about the lack of gloves and became more angry and orally abusive. It was at that point, according to these accounts, that superintendent Quick intervened and tried to calm Mosley down, telling Mosley that he needed to show Vasilakes some respect. When this failed and Mosley continued making threats, swearing, and referring to the " F**ing Mexicans" being hired by Alpha, Quick then told Mosley he was fired and Mosley's father had to physically remove Mosley from the shop.
At least four of Alpha's witnesses testified that Mosley exhibited signs of being on something or under the influence of alcohol. In addition, Quick, in his written affidavit, stated he could smell alcohol on Mosley's breath.
Finally, the only thing that Alpha's witnesses could specifically recall Mosley
complaining about was the lack of gloves. However, several of the witnesses acknowledged on cross-examination the possibility he may have spoken about other matters.
Mosley denies being verbally abusive with Vasilakes, making disparaging remarks about Latinos, and having had anything to drink prior to the meeting. Finally, while Mosley agrees he became verbally and physically confrontational with ...