Proximity of NY Worker’s Termination to Claim Could Not Alone Establish Retaliatory Motive
Where a New York workers’ compensation claimant admitted that, prior to his work-related injury, he had been told by an employer’s representative that the employer had contacted the claimant’s union looking for other qualified workers to replace him, there was sufficient evidence to support the Board’s determination that claimant’s termination, which occurred a few days after the injured worker’s injury claim was acknowledged by the Board, was not in retaliation for filing the claim and, therefore, did not violate N.Y. Workers’ Comp. § 120 [Matter of Peterec-Tolino v. Five Star Elec. Corp., 2019 N.Y. App. Div. LEXIS 8960 (Dec. 12, 2019)]. The New York appellate court found that the Board had properly determined that the termination of claimant’s employment was based upon legitimate business concerns.
Proving Discriminatory Motives Can Be Difficult
The appellate court acknowledged that because many employers who seek to discourage employees from pursuing workers’ compensation claims rarely broadcast their intentions to the world, distinguishing a discharge motivated by retaliation from a discharge based upon a legitimate business concern can be quite challenging. Accordingly, a close temporal relationship between the claim and the termination can, of course, be strong evidence that the motive on the part of the employer was improper.
Nonetheless, here, the record reflected that, prior to claimant’s termination, the employer had been implementing a furlough replacement program that required the employer to lay off approximately 10 percent of its electricians. Several months before claimant’s injury, claimant’s supervisor had received an email message from superiors that suggested claimant be laid off because of sub-standard performance. The supervisor testified further that at the time he signed claimant’s termination slip, he was unaware that claimant had sustained an accident at work.
Was Firing Coincidental?
The court acknowledged claimant’s contention that the timing of his termination — days after receiving an alternative dispute resolution letter from the Board — was not coincidental. The court added, however, that it had limited power to review the sufficiency of evidence. It could not and would not substitute its judgment for the inferences drawn by the Board.