By: Carol G. Schley
A recent decision by the Michigan Court of Appeals is a reminder to employers that they must be careful when making employment decisions concerning an employee who has filed a worker’s disability compensation claim.
In Garcia v. Laskowski, 2015 Mich. App. LEXIS 1899 (Oct. 15, 2015), the plaintiff, Marsha Garcia, was employed as an RN manager at a hospital run by the Michigan Department of Health and Human Services. When her performance was evaluated at 3 and 6 months, Garcia received a “meets expectations” review. Prior to these reviews, Garcia had received numerous e-mails from her supervisor regarding documentation errors in patient charts, although a co-worker attested that such emails were common in the workplace and meant to provide guidance, not criticism.
In August 2011, Garcia was injured at work while assisting a patient and filed a worker’s disability compensation claim. When she returned for light duty work, a supervisor told Garcia that she would “not pay plaintiff to answer telephones.” When Garcia returned to full duty, she was assigned a “preceptor,” described as a person to assist Garcia, but also to evaluate her performance. The preceptor thereafter submitted a negative evaluation of Garcia without Garcia’s knowledge. Garcia also continued to receive emails regarding documentation errors similar to those she received prior to her workplace injury.
In December 2011, Garcia met with her supervisors and was given an “unsatisfactory” 12 month performance review and also told that her employment was being terminated. The primary reason given for her termination was her documentation errors. No other disciplinary action was taken against Garcia prior to her termination.
Garcia subsequently sued her supervisors at the hospital, claiming her termination was retaliation for her filing a worker’s disability compensation claim, in violation of Michigan’s Worker’s Disability Compensation Act (“WDCA”). The supervisors argued that they were protected by governmental immunity from being sued. However, the court found that because they were lower level governmental employees, their immunity was limited, and only extended to acts taken by them taken in good faith and without malice. The court held that if evidence showed that the supervisors retaliated against Garcia for filing a worker’s disability compensation claim, they necessarily did not act in good faith or without malice, and thus could be sued. Therefore, the court focused on whether the supervisors’ actions arguably constituted unlawful retaliation under the WDCA.
To establish a retaliation claim, Garcia was required to show: (1) she asserted a right under the WDCA, i.e., filed a claim for worker’s disability compensation benefits; (2) knowledge by her employer that she asserted such rights; (3) an adverse employment action taken against her; and (4) a causal connection between her assertion of rights under the WDCA and the adverse employment action.
Focusing on the fourth element, the court found that “there was evidence that would allow a trial of fact [i.e., a jury] to find … that her request for worker’s compensation benefits was a motivating factor in the termination decision.” Id. at *11. Evidence supporting Garcia’s retaliation claim included her co-worker’s statement that emails concerning documentation errors were common in the workplace and not considered criticism; her 3 and 6 month satisfactory performance evaluations (before she filed a worker’s disability compensation claim); and the supervisor’s comment to Garcia while she was on light duty that she would not pay Garcia just to answer the telephone. Plaintiff further submitted deposition testimony of a supervisor that it was “unusual” for an employee to be terminated after receiving satisfactory 3 and 6 month reviews. According to the court, “[t]his evidence is not direct evidence that plaintiff was terminated because she filed for worker’s compensation benefits, but it does support an inference to that effect. Reasonable minds could conclude that plaintiff’s termination was motivated in part because she sought worker’s compensation benefits.” Id. at *12. Therefore, the court held Garcia’s claims against the supervisors could proceed to a jury trial.
The Garcia case holds many lessons for employers. First, employers must educate their supervisory employees so that they are aware that it is illegal to retaliate against an employee who has filed a worker’s disability compensation claim. Such prohibition against retaliation also exists in connection with other employment-related laws, including federal and state anti-discrimination laws. Second, Garcia is a reminder to employers that they need to have clear guidelines for evaluating employee performance and for terminating employees, and that such guidelines must be consistently followed. Third, it is important for employers to document legitimate work performance issues in a consistent manner, and communicate such performance issues with employees on a timely basis. Finally, it may be advisable to have a “neutral” person (e.g., an HR professional or outside counsel) review a decision to terminate an employee before it takes place to ensure that the decision does not constitute or give the appearance of being retaliation for the employee asserting their rights under law.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at email@example.com or (248)530-6338.
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