Publications: Proof of Retaliatory Intent Critical to Worker’s Compensation Retaliation Claims

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The judgment in a case tried successfully by Ungaretti & Harris partner Nicholas Anaclerio March 18-19, and a March 21 decision on a separate case by the 7th Circuit Court of Appeals drive home the same critical point: a worker who cannot perform all of his job duties after making a worker’s compensation claim may be lawfully discharged as long as he was not fired for making the claim.

On March 19 the Circuit Court of Cook County, Illinois entered judgment as a matter of law for Ungaretti & Harris’ client UHS of Hartgrove, Inc., a psychiatric hospital, in a worker’s compensation retaliation suit brought by former mental health specialist Larry Yancy. Yancy sustained facial, back and hip injuries that incapacitated him from the key job responsibility of restraining agitated patients after an on-the-job assault by two patients. After nearly a year of light-duty assignments the Hospital told Yancy that if he failed to return to full duty it would fill his position. Following his physician’s light-duty directives, Yancy stopped reporting for work, and the hospital subsequently terminated him.

The Yancy court found that Yancy offered insufficient evidence at trial to establish that the hospital terminated him because of his worker’s compensation claim, rather than because of his incapacity to perform his job, and thus entered judgment as a matter of law for the hospital. The judgment followed two days of trial and a cross examination in which Yancy was impeached by numerous prior inconsistent statements about his willingness and ability to perform clinical restraint procedures.

Two days after the Yancy judgment, the Seventh Circuit Court of Appeals in Dotson v. BRP U.S., Corp.¹ emphasized that an employer may lawfully terminate an at-will employee who is medically unable to perform his job, even if the inability is due to an injury compensable under the Worker’s Compensation Act. The employer in Dotson discharged the plaintiff for excessive absenteeism after he made a protected worker’s compensation claim for a workrelated back injury, underwent back surgery, and took 12 weeks of Family and Medical Leave Act leave. After the leave, the Dotson plaintiff remained unable to perform all of his duties, prompting his employer to discharge him under a uniformly-enforced policy providing that employees who remained incapacitated from work for more than 12 weeks were deemed automatically terminated irrespective of the reason for their inability to work.

Citing federal regulations for the proposition that a “workers’ compensation absence and FMLA leave may run concurrently,” the Dotson court rejected the plaintiff’s claim that an absence due to a compensable injury could not be counted against FMLA leave time, or included in the maximum period of absence permitted under the employer’s absenteeism policy. It noted that after allowing an employee mandatory FMLA leave for an incapacitating compensable injury, the employer may lawfully terminate him for excessive absenteeism if he remains unable to return to full duty. The employer is not obliged to retain and reassign him to another position.

The lesson from Yancy and Dotson is clear: while workers’ compensation retaliation claims cannot always be prevented or avoided, employers can defeat them by showing that their discharge decisions were prompted by an employee’s incapacity to work, rather than an illegal motivation to punish a workers’ compensation claimant. The Worker’s Compensation Act is not a guarantee of continued employment even when, due to a compensable workrelated injury, an employee cannot return to full duty.

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^{1 Dotson v. BRP U.S. Corp., ___ F.3d___, 2008 WL746846 (7th Cir., March 21, 2008).}