Workers' Compensation Retaliation Claim Does Not Require Proof Of A Workplace Injury

Following his termination Michael Onderko sued his former employer, Sierra Lobo, Inc. for workers' compensation retaliatory discharge under Ohio Revised Code 4123.90. The employer argued that Onderko's injury did not happen at work and that it terminated him for his “deceptive” attempt to obtain workers’ compensation benefits. The trial court threw out the claim because Onderko failed to prove his injury occurred at work. The Ohio Supreme Court upheld the court of appeals' reversal. The law in Ohio is now clear that retaliatory discharge under section 4123.90 does not require a showing that the plaintiff suffered a workplace injury. The court further held that a failure to appeal the denial of a workers’ compensation claim does not preclude a retaliatory discharge claim under section 4123.90.

The decision makes sense. The gravamen of a workers' compensation retaliatory discharge claim is retribution for the filing of a claim. The employee's entitlement to workers' compensation benefits is irrelevant. What matters is the employer's motivation for the discharge. Thus, the employer who decides to terminate an employee because of a workers' compensation filing is liable under section 4123.90, regardless of the employee's entitlement to benefits under the workers' compensation system.

You can read the Ohio Supreme Court's decision here:  Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027 (July 21, 2016).

Overtime Retaliation Based on Verbal Complaints to Employer Upheld

          Plaintiff Darnell Greathouse complained to the company president that he had not been paid for several months. The employer told him he’d pay when he felt like it, then drew a gun and pointed it at Greathouse. The United States Second Circuit Court of Appeals reversed the lower court’s decision and decided that a verbal complaint to an employer about non-payment of wages and overtime can be illegal retaliation. Greathouse v. JHS Security Inc., No. 12‐4521‐cv (2nd Cir., Apr. 20, 2015)

          Section 215(a)(3) of the Fair Labor Standards Act (“FLSA”) makes it unlawful “to discharge or in any other manner discriminate against any employee because such employee has ‘filed’ any complaint *** related to” the FLSA’s provisions. Basing its decision on the U.S. Supreme Court’s opinion in Kasten v. Saint‐Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), the appellate court overruled its prior decisions which had held that FLSA retaliation had to stem from a written complaint. The Court took a step not taken by the Supreme Court in Kasten and held that the “complaint” specified in section 215(a)(3) can be made to the employer and does not require a complaint filed with a government agency, as long as – pursuant to Kasten – the complaint is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” Kasten, 131 S. Ct. at 1335. The court remanded the case to the district court for reconsideration of plaintiff’s motion for default judgment on his FLSA retaliation claim.

Termination for Rejection of Employer’s Demand for Repayment of Earned Overtime Is Unlawful FLSA Retaliation.

Plaintiff, the defendant company’s Director of Human Resources, was told by the CEO that he would lose his job unless he agreed to pay back his overtime earnings from several years before. Four days later Plaintiff refused to comply with this demand. The company fired plaintiff three hours later.

Temporal proximity alone may not sufficient to withstand summary judgment, but in this case plaintiff also had the CEO’s threat of termination for refusal to repay overtime.

O'Donnell v. America at Home Healthcare and Nursing Services, Ltd., Case No. 12-CV-6762 (N.D. Ill., Feb. 17, 2015).

But-For Causation and Breaking the Camel's Back in EEOC Retaliation Case - An Example

Roberts v. State, Department of YouthServices, Case No. 2:13cv335 (M.D. Ala., Feb. 11, 2015)

Arthur Roberts, Jr. was hired by the Alabama Department of Youth Services (DYS) as a Security Officer. Within his first few months of employment Roberts notified his supervisor and other administrators that he was an ordained minister and that he wished to provide volunteer pastoral services to the facility’s young men. DYS gave its approval and scheduled him to begin providing services once a month on Sunday.  McCree, Roberts’ immediate supervisor, ridiculed him about his religious activity, teasing him with comments such as “preaching the word today, Minister?” and “You going to get some saved today, ain’t you, Preacher?” McCree also told Roberts not to “come out here with that preaching shit to these kids” because “they don’t want to hear it, ” and McCree stated to another employee, “How in the world is that man [Roberts] going to come out here and preach, when he can’t perform his job he was hired to do[?]”. These comments were made over several months.  Roberts filed a charge with the Equal Employment Opportunity Commission (EEOC) and later sued DYS and McCree for religious discrimination hostile work environment claim and for retaliatory discharge.  

The district court granted summary judgment on Roberts’ religious discrimination claim. The court decided that McCree’s comments were insufficient to establish objectively severe and pervasive conduct. In other words, they were isolated, off-hand comments.  Roberts’ claim was not aided by his testimony that he was still able to perform his job duties.

However, the district court allowed Roberts’ retaliatory discharge claim to go to trial. The central evidence in support of that claim was co-worker testimony that McCree said he intended to “fire [Roberts’s] ass” if he had filed an EEOC charge.  Under University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), a retaliation plaintiff must prove that the retaliatory motive was the ‘but-for’ cause of the adverse employment action. Thus, “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer” is required. Nassar, 133 S.Ct. at 1533.

The district court borrowed an analogy from Burrage v. United States, 134 S.Ct. 881 (2014), to explain that but-for causation can exist even when other possible motives are in the mix, such Roberts’ lackluster job performance:  

[R]etaliatory intent may still constitute a but-for cause even if it “combines with other factors to produce the result, so long as the other factors alone would not have done so--if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.” Id. at 888.

So, even though Robert’s job performance may have contributed to the termination decision, McCree’s comment that he intended to “fire [Roberts’s] ass” if he filed an EEOC complaint raised a genuine issue of material fact as to whether the EEOC charge was “the straw that broke the camel’s back.” 

Naming EEOC Claimants In SEC Filings Is An Adverse Employment Action

In Greengrass v. International Monetary Systems Ltd., 13-2901(Seventh Circuit, Jan.12, 2015), Plaintiff sued her former employer alleging retaliation for filing an EEOC complaint. Plaintiff claimed that defendant retaliated by naming her in its annual SEC filings and casting her complaint as "meritless." The district court granted summary judgment for defendant on the ground that plaintiff lacked evidence showing a causal link between her EEOC filing and the alleged retaliatory act. 

Reversing, the Seventh Circuit decided that defendant engaged in an adverse employment action when it listed plaintiff’s name in its SEC filings. Naming EEOC claimants in publicly available SEC filings could dissuade a reasonable worker from making or supporting a charge of discrimination, which is “the essence of a materially adverse employment action.” As for evidence of discriminatory animus, the court cited emails evincing disdain for the EEOC process and expressing confidence that it could avoid a "large damages award" because, without the EEOC's involvement, plaintiff "likely [would not] have the resources for a lengthy court fight." The court also pointed to the forwarding of her EEOC complaint to an alleged harasser with the message, "Call me before you explode." Further, the defendant’s multiple shifts in policy -- from not including litigants' names in the SEC filings, to listing them, and then not including them again—could lead a reasonable juror to find that defendant was "dissembling."

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