Injured NY Freelance Technician Loses in Bid to Show Termination of Employment was Retaliatory

A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that a freelance per diem technician was not fired in retaliation for his filing of a workers’ compensation claim since there was ample evidence before the Board that he had been notified—prior to the injury—that his assignment would terminate at year’s end [Matter of Hogan v. CBS Television Stations, 2022 N.Y. App. Div. LEXIS 3331 (3d Dept., May 26, 2022)].

Background

Claimant, a freelance per diem technician, began working for CBS Television Stations in November 2015. On December 11, 2015, claimant injured his finger. Claimant reported the injury to the employer’s engineering supervisor and human resource department on December 15, 2015, and filed a claim for workers’ compensation benefits (the claim was ultimately established for an occupational disease to the right ring finger with a date of disablement of January 5, 2016).

After claimant’s employment ended on December 23, 2015, claimant filed a discrimination complaint against the employer pursuant to N.Y. Workers’ Comp. Law § 120, alleging that he had been discharged in retaliation for filing the workers’ compensation claim.

Following a hearing, a WCLJ ruled that the employer had violated § 120. Upon administrative appeal, however, the Board reversed, finding that the claimant had not met his burden of establishing a § 120 claim. Claimant appealed.

Appellate Court Decision

The appellate court said the record reflected that the claimant, who worked periodically for the employer as a per diem freelance technician, but had not worked for the employer since April or May 2015, approached the employer’s vice-president of engineering, who was responsible for hiring and firing in that engineering department, in early November 2015 seeking employment. After a November 12, 2015 email from the vice-president to the engineering supervisor inquiring about the availability of any work, claimant was given an assignment that was due to end at the end of December 2015.

There was additional evidence that on November 24, 2015, prior to Claimant’s injury, Claimant requested a meeting with the vice-president to discuss the length of the assignment and, according to the vice-president’s testimony, which the Board credited, Claimant was informed that the assignment would be terminated at the end of December 2015. Other evidence indicated that the vice-president reiterated that fact one week later. The appellate court stressed that the record established that Claimant was notified multiple times of the date that the assignment would terminate well before he injured his finger on December 11, 2015 or reported such injury to the employer.

While Claimant offered testimony that he had not been informed of the termination until after he reported his injury, the court also stressed that the Board was entitled to credit the testimony of the vice-president and the engineering supervisor that Claimant’s injury and concomitant filing of a workers’ compensation claim was not involved or related to the termination of his assignment. The appellate court said it was not the role of the court to reweigh the evidence. Substantial evidence supported the Board’s decision that claimant did not demonstrate a nexus between the filing of his claim and the termination of his employment.

Comment

As noted in Larson’s Workers’ Compensation Law, § 104.07[3], since an employer is not likely to announce retaliation as its motive for terminating the injured worker’s employment, the worker’s prima facie case must be shown by circumstantial evidence. Proximity in time between the claim and the firing is a typical beginning point. Once the worker has made a prima facie case of retaliation, the burden shifts to the employer to show a legitimate non-pretextual, non-retaliatory reason for the discharge.

In the case at hand, the termination soon followed the injury. On the surface of things, therefore, the claimant had made out a prima facie case of retaliation. The employer was successful, however, in showing that the project upon which the claimant worked was to end at the end of the year and that this had been made clear to the claimant prior to his injury. Thus, the termination was unrelated to the work-related injury.