Workplace law regarding retaliation

bullard-law2By Bullard Law,
Portland law firm

In the (fictional) mailbag today The Bullard Edge fields a question from a frustrated HR Manager who identifies himself only as Pat. He believes that he has grounds to terminate two employees, but is concerned about potential claims. We found his letter entertaining and offer some suggestions for thinking about retaliation claims. Here is the exchange.

Pat’s Question:

What is it with retaliation? Everything is retaliation these days. Have you seen what EEOC said about retaliation recently? I can barely stand it.

I am sure you have heard of my employer, Mid-Town Melt Down. We are famous for our “green” metal recycling processing operation. This is where most of our 120 employees work. (Except in the HR office, we do very little melting down these days. When the company opened in 1947, though, it was a foundry.)

Here is the situation that prompts my letter. Two employees broke bones at work recently. Let’s call one Sluggo and the other Bean. Early last week Sluggo broke his finger in the workplace. He actually did not report it voluntarily; his supervisor found him doubled over in pain holding his finger and after getting Sluggo to admit he was injured the supervisor forced Sluggo to make a report. Sluggo told me, and wrote on the workers’ compensation claim form, that while carrying a box he did not see a door being opened in front of him and he walked right into it. The medical information is conclusive: his finger is broken and the workers’ compensation claim has been accepted.

Separately, Bean has a fractured cheek. I was on the processing floor last week and saw Bean. He had a huge bruise on his cheek. When I asked about it he said it was nothing. His co-worker, Bob, was standing right there and disagreed. Bob said Bean hurt himself at work. I looked at Bean and he reluctantly explained that he had slipped on a wet spot and ended up slamming his face against the wall. He said he was embarrassed and did not want to say anything. I told him that Bean would give him a workers’ compensation claim form and that I wanted him to see either the onsite nurse or his own doctor. Bean saw his doctor and it turns out the bruise is really a fractured cheek. Bean’s workers’ compensation claim has been accepted.

The kicker is that both of these stories are false. There was no door or wall. Sluggo broke his finger punching Bean in the face, which punch fractured Bean’s cheek.

I learned the truth accidentally. Chad, who is Bean’s former brother-in-law and works as a lead person (we are small and have a number of family relationships of sorts), made a remark to me about Bean learning his lesson. I agreed and said I guess he will look where he walks. Chad seemed confused. He said, “Bean knew what he was doing.” That confused me and I just blurted out, “What?” Chad tried to change the topic, but I persisted and eventually found out the truth. At the building entrance Sluggo had confronted Bean because he thought Bean was dating his estranged wife. I pulled the security footage and it showed a brief argument followed by a one-punch fight.

Sluggo and Bean lied to me and they lied on their workers’ compensation claims forms. I want to terminate them both for dishonesty. The injuries happened in the workplace (so there is no reason to contest the benefits claims), but not as they said. Sluggo also broke our rule against fighting.

My concern is this. If I terminate them for dishonesty, they are going to file claims with EEOC or BOLI alleging that I fired them in retaliation for their workers’ compensation claims. That is not what is happening, although the timing of termination does not look good. How risky is termination?

The Bullard Edge‘s Response:

The human resources field is never boring, Pat. It is way more interesting than fiction.

Looking at your question and the facts as you have reported them, this does not feel like retaliation. That being said, we are not going to give you legal advice on this situation. We will share with you several things to consider.

First, it sounds like you are familiar with the three elements of a claim for retaliation:

1. engaging in protected activity, such as filing a workers’ compensation claim;
2. adverse action taken by the employer, such as termination of employment; and
3. a causal connection between the protected activity and the adverse action.

Second, in your case it seems like elements (1) and (2) would be a given. On element (1) there clearly has been protected activity. Both Sluggo and Bean have filed claims for workers’ compensation benefits and those claims have been accepted. On element (2) it is tough to imagine a more adverse employment action than termination of employment. (Of course, it is important to note that even where a claim ultimately is denied an employee still has the right to file a claim for benefits and the act of filing a claim is protected activity. We raise that issue here because Sluggo was an active participant in the one-punch fight. Under the “aggressor rule” it is possible that his injury could be deemed non-compensable. While his workers’ compensation claim has been accepted, it may be that the insurer was unaware that the injury occurred in a fight.)

Third, in many cases it is element (3) that gets all the attention. Why was a certain action taken? Is there a connection between the protected activity and the adverse action? This is actually a two-part inquiry that looks at the motivation for the adverse action and the proportionality or appropriateness of the response.

Fourth, you addressed the motivation for termination in your letter. Both Sluggo and Bean falsified their stories. While their injuries are real and occurred in the workplace, both employees lied to you and then again when they signed their workers’ compensation claim forms. The Form 801 provides: “By my signature, I am making a claim for worker’s compensation benefits. The above information is true to the best of my knowledge and belief.”

Fifth, you did not address proportionality in your letter. The question is whether the punishment fits the crime. Dishonesty is fairly serious and both employees are twice guilty of that. The question is whether termination is the normal penalty imposed by Mid-Town Melt Down for dishonesty. If not, then Sluggo and Bean could argue that the workers’ compensation claims are the real reason for termination of their employment. An employer always wants to be able to articulate its legitimate non-discriminatory reason for taking action.

Sixth, your letter reminds me of a case recently decided by the Sixth Circuit Court of Appeals called Witham v Intown Suites (March 10, 2016). As detailed in the opinion, Intown Suites fired Ms. Witham, its general manager, because she started a fight in the lobby with a visitor. During the fight she incurred injuries for which she sought immediate medical treatment. A few days later hotel management reviewed the security camera footage and saw that Ms. Witham had initiated an argument followed by a fight. The hotel suspended her and then terminated her for starting an argument and a fight. Ms. Witham challenged the termination by filing a claim alleging the termination was retaliation for pursuing workers’ compensation benefits. Both the trial court and the Sixth Circuit rejected this contention. The appellate court found that the evidence, including both testimony and the surveillance tape, demonstrated that Ms. Witham had been the instigator of a fight, that her conduct violated hotel policy, and that termination rather than a lesser punishment was consistent with personnel policies.

Seventh, going back to the beginning of your letter, we agree that EEOC is very focused on retaliation claims these days. The agency is trying to water down the meaning of “protected activity” in its Proposed Enforcement Guidance on Retaliation and Related Issues, which it published on January 21, 2016. The increased emphasis being placed on retaliation claims makes it all the more important for employers to have clear personnel policies, to be uniform in their application of these policies, and to document and be able to articulate their legitimate non-discriminatory reasons for taking action.

I hope this helps, Pat. Once again, we wish you a happy St. Patrick’s Day and the best of luck.

The Bullard Edge

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