NJ Adopts McDonnell Douglas Test For Retaliation Claims In Workers' Compensation

New Jersey is a state with relatively few retaliation law suits arising from workers' compensation.  For that reason, the decision in Peralta v. Joule Staffing Services, Inc., A-1004-11T3, A-1005-11T3 (App. Div. January 3, 2013) is drawing attention from practitioners.

Ronald Peralta, a native of Peru, worked as a forklift operator for Joule Staffing Services from 2003 to 2007 at 12 different work sites.    On December 5, 2007, he was in a forklift accident at a warehouse owned by a co-defendant Customized Distribution Services, Inc. (hereinafter CDS).  After the accident, one CDS supervisor requested that Peralta fill out an incident report.  That did not occur, plaintiff alleged, because another supervisor said he would take care of this detail.

The failure to fill out an incident report and the failure to undergo post-accident drug testing became an issue.  Plaintiff alleged he had back pain after the work injury and missed his next shift for that reason.  CDS claimed that plaintiff did not even say anything about being injured.  The next day the Operations Manager at CDS advised his assistant to inform Joule not to send Peralta to their site any longer because he failed to comply with post-accident procedures following his accident, including drug testing.

Joule's Safety Transportation Manager also filled out an incident report on December 7, 2007 stating that Peralta was in an accident but had not been injured; nor did he fill out the post-accident report or submit to drug testing.  Peralta  was thereafter suspended by Joule.  The Branch Manager also advised Peralta to set up a meeting with the Safety Transportation Manager.  At that meeting Peralta asked the Branch Manager if he could make a claim and was told to do it through the Safety Manager, who was not able to make the first meeting.

Peralta tried a second time to meet with the Safety Manager.  When that failed he sought counsel, who contacted Joule on January 7, 2008 requesting treatment.  On January 17, 2008, Peralta filed a workers' compensation claim and was treated or examined by five doctors.  Eventually he received $5,000 in a workers' compensation award. 

Peralta was medically cleared to return to work commencing January 24, 2008.  However, he never received any further work assignments from Joule.  Thereafter he sued in civil court contending that he was terminated in retaliation for filing a workers' compensation claim.  He also alleged a violation of the New Jersey Law Against Discrimination.  Joule countered that it did not terminate Peralta's employment.  Rather, he received no more assignments because of a downturn in the economy.

The trial court granted summary judgment to Joule and Peralta appealed.  First, the Appellate Division held that retaliation claims in workers' compensation should be analyzed under the “burden shifting” approach of McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, (1973).  The Court said that Peralta must prove that he made a claim for workers' compensation benefits and was discharged in retaliation for making that claim.  The Court said that under McDonnell Douglas, once Peralta establishes a prima facie case, there is a presumption of retaliation.  The burden then shifts to the employer to rebut the presumption by offering a legitimate reason for its treatment of the employee.  The Court said, “Although the reported cases under the WCA (Workers' Compensation Act) do not specifically refer to the McDonnell Douglas burden-shifting framework, the logical underpinnings of the WCA's antidiscrimination provisions make it sensible to apply such an evidential framework to WCA-based retaliation claims.” 

Using this approach, Peralta argued he made out a prima facie case because he was injured, filed a compensation claim, and thereafter never got any more work assignments.  That shifted the evidentiary burden to Joule.  The Court ruled that Joule successfully rebutted Peralta's proofs by showing that it had a legitimate, non-discriminatory reason for not sending Peralta more assignments.  The company reduced its business during the recession years and eventually closed the Passaic, New Jersey office where Peralta had worked. 

In addition, the mere fact that plaintiff failed to receive more work assignments after his injury at CDS and the filing of his compensation claim does not furnish a sufficient basis to infer that unlawful discrimination or retaliation occurred.  Temporal proximity alone is generally insufficient to support an inference of a causal connection as part of a prima facie case of discrimination, unless the timing at issue is ‘unusually suggestive.'

The Court said that Peralta had not been able to rebut the legitimate reason offered by Joule for not sending Peralta back to CDS or giving him further assignments.  Therefore, the Court affirmed the dismissal of Peralta's case.

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