Wyoming High Court Adopts “Substantial and Motivating Factor” Test to Judge Retaliatory Discharge Claim

Adopting the “substantial and motivating factor” test to determine if an employer’s decision to terminate a worker’s employment was retaliatory, the Supreme Court of Wyoming reversed a trial court order that granted a corporate defendant summary judgment in a retaliatory discharge action filed against it by a former employee [King v. Cowboy Dodge, Inc., 2015 WY 129, 2015 Wyo. LEXIS 147 (Sept. 23, 2015)]. The Supreme Court found that the plaintiff’s case should proceed to trial since there were genuine issues of material fact as to whether the defendant had retaliated against the plaintiff after the latter filed a workers’ compensation claim. The trial court had granted the defendant’s motion upon a finding that the plaintiff had failed to make the required showing that his termination was “consequent” to filing a workers’ compensation claim. Quoting Larson’s Workers’ Compensation Law, § 104.07, the Wyoming high court indicated the trial court had used an improper standard.

Prior Decisions

The Court noted that retaliatory discharge actions had been judicially recognized in Wyoming since the Court’s decision in Griess v. Consolidated Freightways Corp. of Delaware, 776 P.2d 752 (Wyo. 1989). Subsequently, the Court had approved a burden-shifting approach that allowed a discharged employee to prove retaliation not only directly, but also by showing that the explanation given for the discharge was a pretext, although the ultimate burden of persuasion was always to fall on the employee [Cardwell v. American Linen Supply, 843 P.2d 596, 599–600 (Wyo. 1992)].

As observed by Dr. Larson:

Ordinarily the prima facie case must, in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive. Proximity in time between the claim and the firing is a typical beginning-point, coupled with evidence of satisfactory work performance and supervisory evaluations. Any evidence of an actual pattern of retaliatory conduct is, of course, very persuasive ….

Larson, § 104.07[3].

Filing of Claim Need Not Be the Only Reason for Firing

The Supreme Court indicated the trial court had understandably concentrated on the word “consequent” to describe the required causal connection between seeking workers’ compensation benefits and the termination. Turning to a dictionary definition, the trial court had determined that the term meant “as a result or effect,” but when no further with the burden-shifting analysis. The trial court found that the term “consequent” required that the only basis for the decision to terminate had to be the filing of the claim. That was error. While the filing of the claim had to be a “substantial and motiving” factor, it need not be the sole factor.