Predict whether an at-will employee can sue for wrongful discharge after reporting unsafe conditions to a state agency. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
The assignment
To: Associate. From: Monique Ferreira, Partner. Re: Kessler v. Harbor Steel. Our client, Owen Kessler, worked as a forklift operator at Harbor Steel. He reported a broken guardrail to the state safety agency and was fired nine days later. He had no written contract. Please write an objective memorandum predicting (1) whether Franklin recognizes a wrongful-discharge claim on these facts, and (2) whether Harbor Steel's stated reason, poor attendance, defeats the claim. Use only the Library.
File
Client interview
Mr. Kessler worked at Harbor Steel for four years. On May 2 he told his supervisor that a guardrail on the loading dock was broken and that a coworker nearly fell. Nothing was fixed. On May 9 he filed an online report with the Franklin Workplace Safety Agency. On May 18 the plant manager, Dale Brandt, fired him and said the reason was attendance. Mr. Kessler had been late four times in the previous year and had received one written warning in January. Two other workers with similar records were not fired. The agency inspected on May 15 and cited Harbor Steel for the guardrail.
Termination letter
Harbor Steel is ending your employment effective May 18 because of repeated tardiness and failure to follow the attendance policy. Dale Brandt, Plant Manager.
Library
Franklin Workplace Safety Act, section 31-120
An employer may not discharge or discriminate against an employee because the employee has reported a violation of a workplace safety law to a state agency. An employee so discharged may sue for reinstatement, lost wages, and costs. The employee must file within one year.
An at-will employee was fired after refusing to falsify a safety log. Held: Franklin recognizes a claim for wrongful discharge in violation of public policy when an employee is fired for acting in accord with a clear public policy found in a statute. The employer may still defend by showing a legitimate reason, but the employee wins if the protected act was a substantial motivating factor. Temporal proximity is evidence of motive but is not by itself enough.
An employee was fired for absences after complaining to the safety agency. The employer showed a written attendance policy. Held: for the employee, because the employer applied the policy more harshly to the complainant than to similar workers. Evidence that similarly situated employees were treated differently permits a finding that the stated reason was a pretext. A stated reason does not defeat the claim if the jury could find the real reason was the protected report.
What graders look for in this task
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
Identifies section 31-120 as directly protecting reports to a state agency
Notes the discharge followed the report by nine days and that Mr. Kessler filed within the one-year period
Applies Nadeau's substantial motivating factor test
Recognizes proximity alone is insufficient and looks for other evidence
Uses Ibarra to argue pretext from the two workers with similar records who were not fired
Considers the January warning and four late arrivals as Harbor Steel's best evidence
Predicts the claim survives and would likely reach a jury