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Aug 1, 2019

Federal District Court Rejects “Perception Theory” of Workers’ Compensation Retaliation

Fired Worker Must Either Have Filed a Claim or Communicated an Intent to Do So

Construing Pennsylvania law, a U.S. District Court rejected the so-called “perception theory” of workers’ compensation retaliation, holding that it was insufficient for the terminated employee to allege that the employer fired him because the employer believed that the employee was going to seek workers’ compensation benefits; the employee must either have filed a workers’ compensation claim or at least expressed his intent to do so in order for the firing to be deemed retaliatory [Bamat v. Glenn O. Hawbaker, Inc., 2019 U.S. Dist. LEXIS 125087 (July 26, 2019)]. Accordingly, the court granted partial judgment on the pleadings in favor of the defendant/former employer on the retaliatory discharge issue. It softened that blow, however, by allowing the plaintiff to file yet another amended complaint.

Background

Plaintiff’s amended complaint alleged two claims under Pennsylvania law—a wrongful discharge claim under a theory of workers’ compensation retaliation and an invasion of privacy claim, as well as discrimination and retaliation claims under the Rehabilitation Act (“RA”) and the Americans with Disabilities Act (“ADA”). The district court granted the defendant employer’s motion for partial judgment on the pleadings, leaving only plaintiff’s ADA claim actionable.

The district court subsequently granted plaintiff’s motion to file a second amended complaint to restate his workers’ compensation retaliation claim. He filed a second amended complaint in which he alleged that he reported an insect bite as a work-related injury, that an injury report was created, and that his supervisor told him that he should be compensated for the bite. The employer again moved to dismiss the portion that alleged retaliatory discharge.

Reporting an Injury is Insufficient

The district court observed that the plaintiff had failed to allege, inter alia, facts that he “expressed a specific intent to seek workers’ compensation benefits.” The court added, “Simply reporting the work related injury is not enough.”

The plaintiff had argued that because the defendant believed that the plaintiff intended to seek workers’ compensation benefits, the plaintiff had stated a wrongful discharge claim under a so-called “perception theory” of workers’ compensation retaliation.

Perception Theory Recognized in Some Retaliation Claims

The district court acknowledged that the Third Circuit Court of Appeals had recognized the so-called perception theory in the context of retaliation claims alleged under the ADA, the Age Discrimination in Employment Act (ADEA), and the Pennsylvania Human Relations Act (PHRA), concluding that a plaintiff may support a retaliation claim with facts that his employer perceived the plaintiff had engaged in protected activity. Yet the plaintiff had cited no authority—and the court could not find any such authority—in which a plaintiff sustained a claim arising under Pennsylvania law for workers compensation retaliation without expressing to his or her employer an intent to file a workers’ compensation claim.

Strength of Pennsylvania’s “At-Will” Doctrine

The court continued that the plaintiff’s argument was essentially undermined by Pennsylvania courts’ repeated characterization of workers compensation retaliation claims as a narrow exception to the Commonwealth’s employment at-will doctrine.

The court concluded that it could not conclude that a wrongful discharge claim based on a theory of workers compensation retaliation can be premised only on facts as to what the employer believed; the plaintiff should have alleged facts as to what as to what he had said or expressed to the employer about his specific intent to file a workers compensation claim. It was the absence of those alleged facts that doomed the plaintiff’s original complaint and his first amended complaint. That problem had not been cured by his second amended complaint.

Three Strikes and You’re Still Not Out

According to the court, the plaintiff sought leave to file yet a third amended complaint, alleging in relevant part that he did mention to one of his supervisors his intention to seek workers’ compensation benefits related to the insect bite. The court noted, as pointed out by the employer, that the appearance of this new fact appeared to contravene the plaintiff’s earlier representations in the case. The court noted, however, that the employer had stopped short of accusing the plaintiff of acting in bad faith. Taking that into consideration, and balancing Rule 15’s mandate that courts must freely give leave when justice so requires, the court granted the plaintiff’s motion for leave to file a third amended complaint.