Time Lapse Drops Wrecking Ball on Crane Operator's Retaliation Case

Georgetown, KY (WorkersCompensation.com) – An employer can generally defeat a worker’s compensation retaliation case by highlighting the lack of causal connection between the employee’s protected activities and an adverse employment action. 

That’s what the company did in Jackson v. Konecranes, No. 5:21-240-DCR (E.D. Ky 08/15/22), where a crane operator filed a worker’s compensation claim after he slipped on black ice and injured his wrist.  

A year after he filed his claim, the company fired him. He sued, alleging that the company retaliated against him because he exercised his rights under the workers’ compensation statute.   

The court pointed out that the employee was not required to demonstrate that the sole or even the primary reason for his termination was related to exercising his rights under the worker’s compensation statute. He only had to show that his protected activity was a substantial and motivating factor in the decision to terminate him. 

The court held that the operator failed to establish that his termination and the exercise of his rights were connected. Therefore, he could not establish a retaliation case and the court granted the company summary judgment. 

The case highlights some of the right moves a company, and its managers, can make to help minimize retaliation complaints by fired employees. It also highlights factors a company can point to in court when a worker alleges the employer was acting out of a desire for retribution. 

Some of the factors the court in Jackson relied on, and which other courts generally consider, were: 

1. The lapse of time between the protected activity and the termination 

The temporal proximity of the activity and firing is not determinative. Nor is the fact that a long period of time separates the two events. But it can help sway a court. 

In this case, the court noted that 13 to 14 months passed between the crane operator’s initiation of his workers’ compensation claim and his termination. 

2. The company’s attempts to accommodate the employee’s work restrictions 

If managers genuinely attempted to implement the employee’s work restrictions—especially if those managers took part in the subsequent termination decision—that can help undermine the employee’s contention that the company fired him because it didn’t want to provide those restrictions or was otherwise hostile to his worker’s compensation claim. 

Here, the court found that the company worked to provide the physical restrictions that the operator’s physician recommended, including by placing the employee on light duty. 

3. The consistency of the company’s explanation for firing the worker 

Employers sometimes lose credibility in court if there is evidence that they provided inconsistent or changing explanations for ending the worker’s employment. 

In this case, the court reasoned that a manager issued a signed statement on the day of the termination stating that the operator was fired for falsifying his time ticket. The company’s official termination checklist likewise listed the “primary reason for termination” as falsifying time records. Email messages among company managers echoed the same concerns. 

4. Decisionmakers’ silence concerning the worker’s compensation claim 

The absence of evidence that managers unnecessarily discussed a worker’s compensation claim, or made any negative comments about it, around the time of the termination can help bolster the company’s defense. 

Here, the court found no evidence that company personnel considered or discussed the claim, or the operator’s physical restrictions, during the investigation that led to his termination. Further, the court remarked, managers accommodated all the operator’s restrictions for an extensive period.  

5. Evidence that the reason for the firing had a basis in fact 

A company need only genuinely believe its reason for terminating an employee. The fact that it was wrong won’t necessarily bolster the worker’s retaliation claim. However, evidence that the worker in fact violated company policy can help the company establish the genuine nature of its concerns, and thus that it was not acting out of a desire to retaliate. 

Here, the court pointed out that time records produced by the company appeared to demonstrate that the employee in fact falsified his time records.