Virginia Employment Law Receives $2.3 Million Jury Verdict for Former APCO Lineman Who Complained of Workplace Safety

After a three-day jury trial, a Roanoke City Circuit Court jury deliberated for five hours to reach the conclusion that Appalachian Power Company wrongfully terminated Ocal "Bubba" Smith in violation of the Virginia Occupational Safety and Health Act. Further, the jury found that APCO tortiously interfered with Mr. Smith's subsequent employment with a third-party contractor. A Roanoke Times article on the trial is posted below, but may also be read HERE.

Roanoke jury finds for ex-Appalachian Power employee who made safety complaints

Standing in front of a Roanoke jury, Tommy Strelka grasped a dollar bill in one hand and a blaze-orange safety vest in the other.

“Money over safety,” the attorney said, holding the cash above the vest. “Production over safety. That’s the Apco way. That’s what they do.”

It was closing arguments in the case of Strelka’s client, Ocal “Bubba” Smith, a former line worker for Appalachian Power Co. who claimed in a lawsuit that he was fired for repeatedly voicing concerns about unsafe working conditions that he and his co-workers faced.

Late Thursday, the jury found in Smith’s favor — awarding him $2.3 million in lost wages and other damages.

The verdict came about 10 p.m. on the third day of a trial in Roanoke Circuit Court, where Appalachian’s position that safety is paramount was pitted against Smith’s contention that rules meant to protect workers were often overlooked in the pursuit of profit.

As a line mechanic, Smith was paid $39.80 a hour to maintain and repair high-voltage power lines, a dangerous job that included venturing out in bad weather to either climb poles or work high above the ground in buckets elevated from trucks.

In testimony, he outlined a series of complaints he made over the years: That workers were required to use bucket trucks during high winds, that protective gear was not always worn, that warning signs were not put up when heavy equipment was parked on public roads, and that line mechanics could have been electrocuted due to failures to follow safety rules that govern the handling of power lines.

There was no evidence presented that anyone was injured.

However, an investigation by the Virginia Department of Labor found several violations. In 2018 — less than a year before Smith was fired — Appalachian was fined $33,715 for not following regulations.

Circuit Judge David Carson did not allow the jury to hear about the violations, ruling before the trial began that there was not a sufficient link between them and Smith’s complaints.

Smith made the allegations anonymously, and the Department of Labor would not reveal the source. There were conflicting accounts about whether Appalachian knew that Smith was the whistleblower in those cases.
But there was little doubt that he raised safety issues early and often during his 17 years with the utility.

“All I wanted to do is do the job by the rules,” Smith testified. But as he voiced concerns to everyone from his immediate supervisor up to the president of Appalachian, “nobody listened to me,” he told the jury.

“Going up the chain, no nobody listened.”

One of the Department of Labor’s investigations was into an “electrical flash” that occurred in 2017 when Appalachian crews were removing a temporary line next to a bridge under construction in Wythe County.

The power line had not been de-energized, and when it was taken down it came into contact with a wire fence, according to the investigation report, which is included in court records.

Violations included a failure to perform a job briefing before work began, not following procedures for dealing with energized lines and a lack of temporary traffic control in the work area.
The inspector wrote that, in general, Appalachian’s safety manual was “stellar” and in compliance with state and federal regulations.

“However, upon interviewing employees, there appears to be an issue with one particular supervisor in that there is a ‘push’ to get work done,” the report read.

“If someone feels that it is unsafe and speaks out in an attempt to stop work, the [supervisor] will ask the employee if he is ‘refusing’ work; thus creating intimidation and the employee will continue to work unsafely so as not to be written up for insubordination,” the inspector wrote.

Although that incident was not part of the evidence presented to the jury, Appalachian officials testified that the utility puts safety first and has a number of programs to ensure that rules are followed.

“This is an unforgiving business,” Appalachian President and Chief Operating Officer Chris Beam told the jury. “The work that we do, there is no room for error. One mistake we make could be deadly for the employees, the public, or both.”

Company officials testified that investigations by in-house departments were conducted into Smith’s complaints, and that they were not found to be valid.

“Safety is drilled into every operation the company does,” one supervisor told the jury.

Over time, Appalachian officials said, Smith became increasingly aggressive and began to conduct covert investigations, photographing his co-workers not wearing hard hats or committing other violations that he reported to management.

Tom Winn, a Roanoke attorney who represented Appalachian, that some workers became so concerned about Smith’s “vicious” and “mean-spirited” safety crusade that they requested to be transferred and asked if they needed legal representation.

“Bubba Smith lost his job because he could simply not let things go,” Winn said in his closing arguments.

In the end, Smith was not fired for performance issues — his job reviews were consistently good and he had never been previously disciplined — but rather because his conduct had gotten out of hand in the view of management.

“You could probably say it was work environment harassment, maybe even intimidation,” Beam said when pressed by Strelka for the reasons for the termination.

Was there a concern that Smith might become violent? the attorney asked.

“I have no idea,” Beam responded. “But I couldn’t afford to find that out. You can’t wait until something happens and then say ‘I should have done something about that.’ “

While management seemed to have problems with Smith, his attorney argued, his co-workers described him as a team player who was genuinely concerned about workplace safety.

“This man tried for years to fix what was going on at Apco,” Strelka told the jury.

Smith’s lawsuit included two claims. The first was that he was illegally fired for engaging in a protected act, that being raising safety concerns. A second assertion was that after he was fired, Appalachian banned him from working on its property, making it all but impossible to find a similar job with other companies that performed subcontracting work on power lines. Testimony showed that Appalachian reported him to a company that he worked for following his termination in March 2019.

The jury awarded $1.27 million on the first claim, and another $672,000 on the second. It also allowed for pre-judgment interest of 6% to be collected, bringing the total verdict to approximately $2.3 million.

Strelka, whose Roanoke law firm represents employees in labor disputes, said the case was unusual for the size of the verdict and for Appalachian’s “absolute hubris” in responding to the lawsuit.

“The defendant is not used to anyone pushing back against them,” he said.

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