Missouri: Court Declines to Lower Burden to Prove Wrongful Discrimination Claims

Claimant asserts his boss fired him because he had a worker’s compensation case, but he failed to convince a jury of that claim. He had a disagreement with his employer whether he should take a break to rest and elevate his foot before completing an urgent job assignment. The case is Templemire v W&W Welding Inc., 2012 Mo App. Lexis 1639 (December 26, 2012).

Section 287.780 provides that no employer or agent shall discharge or in any way discriminate against any employee for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his employer.

The employer asserted claimant was insubordinate and would not perform the job as requested. The case reports claimant was told: "I wanted the 'F'ing' thing done, and you didn't do it, so get out the 'F'ing' door." Templemire reminded McMullin of his need to elevate his foot, but McMullin told him again to "get out the 'F'ing' door." The claimant asserts that he was criticized that "[a]ll you do is sit on your ass and draw my money" and he was "milking" his previous injury to his foot and if he didn't like it he could "sue him for whatever reason, that's what he pays premiums for and the attorneys."

Medical restrictions related to a previous severe crush injury required claimant when he returned to work to take breaks for 15 minutes out of every hour to elevate and rest his foot. Claimant returned to work on light duty.

The appeal involves a dispute about jury instructions. The court of appeals concluded that the circuit court properly used the state-approved jury instruction. Case law requires that the exclusive cause of a wrongful discharge was plaintiff's filing of the worker's compensation claim. Hansome v NW Cooperage Co., 679 S.W.2d 273 (Mo. banc 1984). 

The court noted that an “exclusive” cause standard was not mandated by language in the statute itself. It declined to follow dicta in Fleshner v Pepose Vision Institute, P.C., 304 S.W.3d 81 (Mo banc 2010) that suggest a lower standard of contributing factor was more consistent with tort claims of discrimination.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

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