Opinion Mondays: Proximity in Time Between Injury and Firing is Not Always Sufficient to Establish Prima Facie Retaliatory Discharge Claim
While proximity of time between an employee’s injury and her firing is generally sufficient to make out a prima facie case for retaliatory discharge, a recent federal district court decision shows that in some jurisdictions, such a showing may be insufficient. Construing S.C. Code Ann. § 41-1-80 and relevant case law, a federal district court dismissed (without prejudice) a case that alleged the plaintiff-employee had been fired just 10 days after she sustained a work-related injury [Alexander v. PharMerica Logistic Servs., LLC, 2021 U.S. Dist. LEXIS 11245 (D.S.C. Jan. 21, 2021)]. The district court acknowledged that in order to support a claim of retaliatory discharge, § 41-1-80 did not require a formal filing of a workers’ compensation claim before the firing. Still, said the court, the employee had failed to allege her claim sufficiently.
Background
Alexander worked as pharmacy director at the employer’s Charleston location. She alleged that she was injured at work on August 27, 2019, when a step stool slipped from under her. That same day, she notified her supervisor of her injury by email. On September 6, 2019, her employer discharged Alexander from her position. After her termination, she filed a workers’ compensation claim, which remained open. She filed a civil action against her former employer in state court, alleging workers’ compensation retaliation and defamation. The employer removed the case to federal court and ultimately sought to dismiss the case.
S.C. Code Ann. § 41-1-80
The court noted that under § 41-1-80, Alexander was required to establish three elements:
- Institution of workers’ compensation proceedings,
- Discharge or demotion, and
- A causal connection between the first two elements.
Quick Firing Won’t Avoid a Retaliation Claim
Citing Johnson v. J.P. Stevens & Co., Inc., 308 S.C. 116, 417 S.E.2d 527 (S.C. 1992), the district court stressed that the purpose of the statute could not be frustrated by the employer’s act of firing the employee before the employee had actually filed a claim. But more was required beyond the mere seeking of medical care. The employee must show circumstances that would lead the employer to infer that a workers’ compensation claim was likely to be filed. Moreover, a plaintiff must also show that his or her workers’ compensation claim was a substantial factor in bringing about the discharge, or that the retaliation was an important fact motiving his discharge.
Alexander Failed in Showing First Element
The court concluded that Alexander had failed to state a claim with respect to the first element of workers’ compensation retaliation. While she alleged that her workers’ compensation claim continued to the present and was pending before the South Carolina Workers’ Compensation Commission, Alexander did not file the claim before her termination. Again, that alone would not defeat her retaliation claim. But here, Alexander only alleged that she notified her employer on August 27, 2019 by email that she had fallen and was injured that day. Alexander did not allege that she received medical care for her injury prior to termination, much less that she asked the employer to pay for her medical care or that they agreed to do so.
Alexander also did not allege any other communications with the employer regarding her injury prior to her termination. She simply alleged that she continued to be in pain and that she worked from home on September 3, 4, and 5, 2019. The court commented, however, that this time period had been during a mandatory hurricane evacuation. The court concluded that the employer would not infer that a workers’ compensation claim was likely to be filed based on these facts.
Amendment of Complaint Possible
As noted above, the dismissal was without prejudice. Alexander was given 14 days to amend her complaint to state a proper claim.
Brief Comment
Ordinarily a prima facie case of retaliation must, in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as its motive [see Larson’s Workers’ Compensation Law, § 104.07]. Proximity in time between the claim or injury and the firing is the typical beginning-point. In many states–although not South Carolina–once an employee shows a prima facie case–i.e., through the injury and a quick termination–the burden shifts to the employer to show a legitimate non-pretextual non-retaliatory reason for the discharge. It is interesting to note that in the instant case, the federal district court did not require the employer to come forward with some non-pretextual reasoner the termination.
Although the court did not mention this factor, practitioners should remember that South Carolina is a strong “right to work” state. Ordinarily, the at will employee–and in South Carolina–the vast majority of employees would be “at will”–may be terminated for no reason or even for a “bad” reason, although under § 41-1-80, the employee may not be fired for filing a workers’ compensation claim.
I think it’s fair to note that in many–perhaps even a majority–of states, Alexander’s August 27, 2019 email message would have been sufficient to put the employer on notice that there might be a subsequent filing of a claim [see Larson, § 126.01, et seq.] In many states, that email, coupled with the firing 10 days later, would have been sufficient to show a prima facie case of retaliation. It remains to be seen if Alexander can successfully amend her complaint.