Facebook® Plays Role in Indiana $400,000 Verdict for Retaliatory Discharge

An Indiana jury was within its province as factfinder in returning a verdict for more than $400,000 in compensatory and punitive damages against a former employer in a retaliatory discharge action filed by a terminated employee, held a state appellate court recently in Best Formed Plastics, LLC v. Shoun, 2016 Ind. App. LEXIS 41 (Feb. 16, 2016). The former employer contended that the trial court erred as a matter of law in allowing the retaliatory discharge action to go to the jury since, it contended, the worker was not physically capable of returning to work at his pre-injury position. The appellate court held that under the facts of the case, which included a Facebook® post accusing the injured employee of malingering, it would be contrary to public policy to say that while an employer could not fire an employee in retaliation for filing a worker’s compensation claim, and at the same time say it could fire the employee for the inability to return to his job due to the injuries that were the basis for the worker’s compensation claim.


The 58-year-old employee sustained a shoulder injury while at work and subsequently filed a worker’s compensation claim. He remained off work for one week and returned to work with medical restrictions. In fact, the employee performed this light-duty work until the day before he was scheduled to take medical leave for shoulder surgery.

The employer was a closely held company, with 50 percent of the stock owned by a husband, 48 percent by the wife, and 2 percent by the son. Until the injury, the employee had been close friends with the family, even serving as best man at the couple’s wedding many years before.

At trial on the retaliatory discharge claim, the employee testified that on the day prior to the scheduled surgery, the son accused the employee of “buffaloing” the doctors and the insurance company regarding his shoulder. As to the necessary recuperative period following the surgery, the employee testified that the son told him that a woman could have a baby and in five days be back at work, implying that the employee’s recuperative period was excessive.

The employee also testified that some three months after the shoulder surgery, he returned to modified work and that a few days later the son approached him and said that the employee had “cost the company a lot more than just production.” The employee indicated he called the workers’ compensation carrier regarding the harassment and that the adjuster said he would make a call and that the actions had to stop. The following day, the employee was confronted by both the father and the son concerning several disciplinary incident reports.

Six weeks later, the employee was informed that there was no work for him due to a slow down in sales. That same day, the wife told the company’s health insurance carrier to cancel “all insurance” for the employee. When the employee’s girlfriend learned of the insurance cancellation, she confronted the wife and was told the employee’s position had been terminated and that he “will never work here again.”

Several months later the father sent the employee a letter accusing the employee of “milking” the workers’ compensation system, indicating also that the employee could make more money staying home and “selling weed.”

Facebook® Post

After the employee filed the civil action alleging retaliatory discharge, the wife made a post to her Facebook® account that indicated that her husband had been able to return to work one month after a five-way heart bypass, but that the employee’s shoulder injury had kept him away from work for 11 months “and now he is trying to sue us.” She finished her post with, “What a loser!”

The post remained on the wife’s Facebook® account for 76 days until she took it down.

No Actual Downturn in Sales

At trial, the employee produced evidence, in the form of the employer’s tax returns, that tended to show that there had been no slow down, that in fact the employer’s sales had steadily increased and that no other employee had been laid off during the relevant period.

Four-Day Trial and Verdict

Following a four-day jury trial, during which the employee testified that he had performed various jobs when he was originally hired by the employer and that there was “no doubt” in his mind that he could still operate an important work-related machine despite his current medical restrictions, the jury returned a verdict awarding the employee $337,680 in compensatory damages for lost income and benefits, $50,000 in punitive damages on that claim, and $25,000 on an invasion of privacy by false light claim.

Appellate Court Affirms

Citing earlier decisions, the appellate court outlined the three-step approach to a retaliatory discharge claim under Indiana law:

  1. The employee must prove, by a preponderance of the evidence, a prima facie case of discrimination. Specifically, the employee must present evidence that directly or indirectly implies the necessary inference of causation between the filing of a worker’s compensation claim and the termination.
  2. The burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the discharge.
  3. If the employer carries its burden, the employee then had the opportunity to prove that the reason cited by the employer was a pretext. That could be established by showing that the reasons are factually baseless; not the actual motivation for his discharge; or insufficient to motivate the discharge.

The question of whether a retaliatory motive exists for discharging an employee is a question for the trier of fact.

Public Policy Argument

The appellate court noted that where undisputed evidence indicated that an employee was physically unable to perform the tasks required by his pre-injury work, that could, under very specific circumstances, serve as a legitimate non-retaliatory basis for termination, potentially rendering a retaliatory discharge claim unsuccessful. The employee still had to be given a chance to rebut the employer’s contention, however.

The court concluded that it would be contrary to the public policy underlying a retaliatory discharge claim to hold that an employer may not fire an employee in retaliation for filing a worker’s compensation claim, but that an employer may fire an employee for the inability to return to his job due to the injuries that are the basis for the worker’s compensation claim. The court added that this was especially the case where, as here, the employee was discharged well before the full extent of permanent injury was known.

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