What Do You Think: Was Teacher with Attendance Issues Fired due to Claim?

02 Jul, 2024 Chris Parker


Beachwood, OH (WorkersCompensation.com) – Workers’ compensation retaliation cases often boil down to a battle of stories, and which one sounds most convincing and is backed up by tangible evidence. A case involving a daycare center worker shows what it may take to tell the story that makes most sense to a court.

In that case, a floating assistant teacher began working at the daycare on June 8, 2021. At some point over the next few weeks, she 

Around July 1, she took time off to get liposuction surgery in the Dominican Republic. In September, she also requested and received time off to care for her fiancé's father while he was recovering from COVID-19. She returned to work on Aug. 24. On Sept. 16, 2021, Long took time off to care for her fiancé, who was recovering from surgery. The following week, she was late between one to four hours on the days she was assigned to work.

The teacher was bending over to pick up an infant on Oct. 4, when she injured her back. She told her employer about it the next day and said she would be gone for a week because of the injury. She also filed a workers’ compensation claim.

The daycare owner, already facing staff shortages, allegedly told her, “I don’t have time for this,” and hung up the phone. The center terminated the teacher on Oct. 9 for poor attendance. The teacher sued for retaliation.

An employee establishes an initial claim of workers’ compensation retaliation if she shows that: 

1) She was injured on the job:

2) She filed a claim for workers' compensation benefits; and 

3) She was discharged in violation for exercising her rights under workers’ compensation statute.

If the employer then states a valid, lawful reason for its action, the employee can continue with her lawsuit only if she shows that reason was just a cover, or pretext, for retaliation.

An employee can establish that the employer's proffered reason for termination is a pretext by providing evidence that the state reason: 1) had no basis in fact; 2) was not the actual reason for the termination; or 3) was insufficient to explain the employer's action. 

Did the daycare fire the teacher because of her workers’ compensation claim?

A. Yes. The center fired her only four days after she told it about her injury. 

B. No. The teacher was gone so often that it made sense the center would terminate her.

If you selected B, you agreed with the court in Long v. KeltanBW, Inc., No. 112919 (Ohio Ct. App. 06/20/24), which found that the teacher failed to poke any holes in the daycare center’s explanation for cutting her loose.

The court acknowledged that the teacher injured herself at work and filed a workers’ compensation claim. Arguably, she met the third part of her initial retaliation claim, given that the center fired her so quickly after learning about her injury.

The employer, however, had a good explanation for firing her, and had documents to back up that explanation. During the short time the teacher worked at the center, before filing a worker’s compensation claim, she was absent numerous times and often late.

As for the teacher’s attempt to prove that the center’s explanation was just a pretext for retaliating against her, that argument fell short as well, the court held. 

The court rejected the teacher’s argument that the center’s explanation had no basis in fact. The documentation showed that she was absent and tardy to a degree that would cause a reasonable employer to terminate her. While the center owner may have made a negative comment and hung up the phone on her, that was enough to show pretext. 

“[The teacher’s] reliance on conjecture is not evidence of pretext,” the court wrote. The court affirmed the trial court’s judgment in the employer’s favor.

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