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Mar 19, 2020

NY Employer’s Quick Firing After Employee’s Injury Was Retaliatory

A New York appellate court affirmed a determination by the state’s Workers’ Compensation Board that an employer violated N.Y. Workers’ Comp. Law § 120 — the state’s anti-retaliation statute — by firing an employee for disclosing to the employer that he intended to file a claim related to his slip and fall injury at his workplace [Matter of Markey v. Autosaver Ford, 2020 N.Y. App. Div. LEXIS 1923 (3d Dept., Mar. 16, 2020)]. Noting that the employee testified that his supervisor “marched off” and made a phone call when the employee told the supervisor he’d be filing a claim, and that the Board found such testimony credible, the court said substantial evidence supported the Board’s decision.

Background

Claimant, the general manager overseeing an automobile dealership, sustained multiple injuries when he slipped and fell on ice as he exited a car at the dealership. He was hospitalized for several days, returned to work, and was fired ten days later. He testified that two days before his firing, he told the executive manager that he would be filing a workers’ compensation claim because he required surgery for a shoulder tear caused in his fall. He testified that the manager became angry, remarked that the owner was “not going to be very happy with that” and “marched off and went to the back office and immediately picked up the phone” and made a call.

Claimant testified that he assumed that he would be fired because, in the past, he had been directed by the owner to fire other employees who had taken time off for vacations or medical reasons. The dealership’s sales manager, who the Board also found to be credible, testified that he overheard that exchange and corroborated claimant’s account. Claimant testified that he was fired two days later. According to Claimant, the owner only stated that they were “moving in a different direction,” with no discussion about Claimant’s work performance.

Appellate Court Decision

The court acknowledged that the executive manager testified that the conversation after which he allegedly “marched off” never occurred, but noted also that the Board found that denial “not credible.” It added that although the executive manager contended that Claimant’s firing was due to a litany of purported shortcomings in his job performance, no contemporaneous records of these deficiencies or any counseling of claimant were produced, and claimant testified that the complaints had never been shared or discussed with him. The sales manager likewise testified that he was unaware of any dissatisfaction with Claimant”s job performance. The Board had added that the only documentation as to poor performance had been constructed by the employer after the termination.

The court concluded that it was the Board’s duty to weigh the evidence and resolve conflicts — not the courts. Substantial evidence supported the Board’s finding that the employer violated § 120.