Dive Brief:

• An employee fired two weeks after making a workers’ compensation claim will get another shot at his retaliation claim, the 5th U.S. Circuit Court of Appeals held in Cristain v. Hunter Buildings & Manufacturing L.P., No. 17-20667 (5th Cir., Nov. 14, 2018)).
• Luis Cristain, a building and manufacturing company employee, was injured on the job. The employer’s safety manager took Cristain to the doctor, showed up at his house unannounced to "check on him" and insisted on driving him to work and the doctor. Several days later, Cristain filed a workers’ comp claim and was reassigned to a newly created position, reporting to the safety manager. Despite having no disciplinary history in his previous position, he began amassing warnings in the new job. Shortly thereafter, he was fired.
• He sued but a district court ruled in the employer's favor. On appeal, however, the 5th Circuit said that taken in the light most favorable to Cristain, the evidence "reflects that Cristain was set up to fail in this invented position for which he received no training and for which he was not well-suited." Considering the "stark temporal proximity" and other evidence, such as the employer's alleged failure to follow its own progressive discipline policy, state law allows Cristian's suit to continue, it determined.

Dive Insight:

Training for managers remains a primary way to prevent employment retaliation claims. In Cristain, the court observed that the manager’s statements conveyed a negative attitude — one of the factors that could establish a causal link between the firing and the compensation claim. The manager "repeatedly made statements indicating doubt about whether Cristain was actually injured," the court said. The manager described Cristain’s injury as a "supposed injury," Cristain’s physical restrictions as "self-imposed," and his physical limitations from the injury as "perceived restrictions."

And while employers need not withdraw or withhold discipline for employees who have undertaken protected activities, Cristain illustrates why it’s key that policies and procedures be implemented evenly. When one employee is disciplined for an action while another gets a pass, the scene is often set for a discrimination or retaliation claim.