The Missouri Supreme Court’s ruling in Templemire v.W & M Welding, Inc. (SC93132, April 15, 2014) should be of great interest to all Missouri employers and to attorneys who represent employers in the fields of workers’ compensation, civil litigation and labor law – interesting but also distressing!
The workers’ compensation statute that is at issue is Sec. 287.780. It reads: “No employer or agent shall discharge or in any way discriminate against any employee for exercising any of his (sic) rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his (sic) employer.”
History. Although the workers’ compensation law has always contained an anti-retaliation provision, the civil action for damages remedy wasn’t created until 1973. Then in 1984, the Supreme Court, in Hansome v. Northwestern Cooperage Co., analyzed the statute and explained that in order for an plaintiff to make a submissible case for recovery under Section 287.780, the plaintiff must prove that: (1) the plaintiff was employed prior to the injury, (2) the plaintiff exercised some right granted by the workers’ compensation law, (3) the employer discharged or discriminated against the plaintiff in some way, (4) there was an exclusive causal connection between the exercise of the right and the employer’s action, and (5) the plaintiff was damaged as a consequence of the discharge or discrimination. For the ensuing 30 years the law followed the holding in Hansome, but then came Templemire.
Templemire. Templemire injured his foot at work and was only able to return to work with job restrictions. After 9 months or so of restricted duty, the owner of the company confronted Templemire over a job assignment that, the employer believed, had not be performed on schedule. An exchange of words followed during which the employer cursed at Templemire and then discharged him effective immediately. Templemire then contacted the insurance adjuster, and the adjuster then contacted the employer in turn, and according to the adjuster’s notes and testimony, the employer then stated his belief that Templemire was “milking his injury” and that the employer didn’t care if he was sued. Additional evidence established that the employer had a history of not accommodating injured workers, belittling them by referring to them as “whiners” and that Templemire’s abrupt discharge violated the employer’s progressive discipline policy. Although the plaintiff asked to submit a jury instruction indicating that the jury could rule in his favor if he had only proven that the workers’ compensation claim was a contributing factor to his discharge, the trail court rejected that instruction and required proof that the workers’ compensation claim was the exclusive factor that led to his discharge. With that directive, the jury found for the employer and the appeals followed.
In a 5-2 decision, the Court ruled that it was time to abandon the “exclusive causation” standard and replace it with the “contributing factor” standard. In the lengthy opinion, the majority explained that the contributing factor standard is in line with the standard applied in Missouri Human Rights Act (MHRA) cases and those decided under the exception to the at-will doctrine applicable to employees who are discharged for refusing to violate the law or for whistleblowing. The majority equated the evil of workers’ compensation related discrimination to the evil of the discrimination based upon gender, race or age that the MHRA addresses (and as equally important as the two judicially adopted limitations to the at-will employment doctrine). The majority also pointed out that the statute contains no standard of proof but does contain the phrase “in any way discriminates”, a phrase that seems to be at odds with the strict exclusive causation standard.
The dissent argued strongly in favor of stare decisis (the doctrine of the adherence to past precedent) and also pointed out that the legislature could have, at any time, abandoned the exclusive causation standard and adopted some other standard, either by modifying Section 287.780 or by abrogating existing case law. Since the legislature hadn’t done either, this lack of action must be interpreted as an ongoing endorsement of the long-standing exclusive causation standard.
Comments. This is a drastic change in the interpretation of s statute that has remained unchanged since 1973. Having to meet the a “contributing factor” standard is not a very heavy burden at all, as we found out during the 12 years we labored under the “a substantial factor” standard that applied to workers’ compensation cases generally from 1993 until 2005, and arguably satisfying the a “contributing factor” standard is less challenging than satisfying that “a substantial factor” standard. Even the standard applicable in federal discrimination case, “the motivating factor” requirement, is a heavier burden that that adopted in Templemire. Moreover, the decision seems particularly odd in the context of the strict construction doctrine adopted as part of the 2005 amendments to the workers’ compensation law.
Reality check. This decision will greatly increase the frequency of retaliation claims filed under Section 287.780. We have already witnessed the plaintiff’s bar’s preference, due to the favorable standard of proof, for filing cases under the MHRA over filing under the corresponding federal discrimination laws. Now any employee who is discharged, or is subject to any unfavorable job action, and who has a pending workers’ compensation case, is a possible plaintiff whose odds of success will be greatly increased under the new a ‘substantial factor” test.
For questions or comments, contact:
James B. Kennedy
Copyright 2014, Evans & Dixon L.L.C.