Surreptitious Recording Reveals Firing Was Connected to Comp Claim and Not Immigration Status
Yesterday, a federal district court held that a Tennessee employer had violated state employment law regarding retaliatory discharge where the employee in question was fired within one hour of the time his attorney contacted the employer asking for information about a workplace injury claim, and where, just before the termination, the fired employee surreptitiously recorded an encounter between the employee and two supervisors, during which one of them hurled colorfully crude language at the employee because he had retained legal counsel [Torres v. Precision Indus., 437 F.Supp. 3d 623 (W.D. Tenn. 2020)]. Quoting Larson’s Workers’ Compensation Law, the court brushed aside the employer’s contention that it had terminated the employee because of his status as an illegal immigrant, citing an earlier analogous case in which the Supreme Court of Minnesota had explained how it was quite possible for an employer to abide both by federal immigration law and a state’s anti-retaliation statute.
Background
The case had been remanded to the federal district court by the Sixth Circuit Court of Appeals [for additional information about the Sixth Circuit decision, see my earlier blog]. Plaintiff was born in Mexico and arrived in the United States illegally in 1997. Plaintiff worked for the defendant employer for approximately one and one-half years before his termination, having purchased a Social Security number on the streets of North Carolina for $120.
On May 17, 2012, plaintiff injured his back while working for the employer, reporting the injury the following day to the safety manager. He was briefly treated at a medical clinic and he returned to work without getting a medical release. In August, plaintiff saw a specialist in Memphis. He subsequently recorded an August 2012 conversation with the safety manager about the medical bills, including one for an MRI. The safety manager said that the plaintiff had not notified the employer about the situation, that she could not “turn this into workers’ comp,” and further stated, “There won’t be a workers’ comp claim on this.” The safety manager subsequently indicated the claim was closed without verification from the workers’ compensation insurance company.
Surreptitious Recording of Encounter
In early September 2012, plaintiff met with and retained an attorney to pursue his claim. The following day, the employer’s safety manager received a call from the attorney inquiring about the claim. The safety manager went to a supervisor and the two decided to speak to plaintiff about the call. Plaintiff surreptitiously recorded the encounter. In it, the safety manager reportedly threatened to “knock the hell out of” the employee and the supervisor said, “Now that you got a f—king lawyer involved. Good luck on that son of a bitch … I’m going to show you a lot of g-d-amn loyalty if that’s the way you f—king do things …. When Terry finds out about this s–t, you’re in a world of hurt.” The plaintiff was formally fired a few minutes later. The termination slip indicated the reason for the termination was “Lack of Work.”
Prima Facie Case of Retaliatory Discharge
Noting that the weight Tennessee courts had given the temporal proximity of the claim and the firing had been actively debated over the years, the district court found that one could hardly argue that the short lapse of time between the attorney’s call to the employer and the employee’s firing was not relevant. In addition to the temporal proximity, defendant’s management had shown undeniable antagonism toward plaintiff. As was evidence in the recording, the safety manager and the supervisor were very angry about plaintiff’s actions. The court also noted that plaintiff’s only performance evaluation resulted in his being given a grade of “A.”
Immigration Status
Quoting Larson, the court acknowledged that after the plaintiff had made his prima facie case of retaliation, the employer could still defend by showing a legitimate, non retaliatory reason for the discharge. At trial, the president of the employer testified that plaintiff had been a disruptive force at work, had caused the breakup of one employee’s marriage, and had stolen from the employer. The employer also contended that plaintiff was legally unauthorized to work in the U.S. The court stressed that a Minnesota case, Sanchez v. Dahlke Trailer Sales, Inc., 897 N.W.2d 267 (Minn. 2017) had involved a very similar set of circumstances to the case at hand [for a full discussion of Sanchez, see my earlier blog on the case]. Agreeing with the Minnesota high court, the federal district court here found that an employer could comply both with IRCA and a state’s anti-retaliation statute. Based on the foregoing, the district court said that plaintiff had persuaded the court that the reasons for termination produced by the defendant employer were clearly pretextual.
Award Included Punitive Damages
The district court found that plaintiff was entitled to $45,708.42 in backpay, and that the award was not preempted by federal law. Plaintiff was also entitled to $1,000 in compensatory damages and $50,000 in punitive damages, for a total award of $96,708.42 [Commentary: “Ouch”].