7th Circuit Takes Retaliatory Discharge

Verdict Away from Jury for WC Filer

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AA Baggage Handler had no Case; Fired for Lying

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“Thousands of employees receive workers compensation benefits

from American Airlines every year without being fired…..” 

            American Airlines baggage handler Bruce Casanova was “on workers comp”, i.e., claimed to have sustained an occupational injury.  He reported a left shoulder sprain to his supervisor and thereafter went to the airline’s clinic at O’Hare.  His supervisor also reported his injury to the airline’s workers comp and risk management service. 

            But his boss had doubts about the injury, since he claimed he was in too much pain, but had worked three solid days after the sprain happened to report it, and although asserting that he was incapable of doing things with his left arm, answered the telephone without apparent problems.  He was put under surveillance and was observed operating a vehicle, contrary to his doctor’s instructions.  Ultimately American called an informal hearing under its labor agreement.  He was uncooperative, stating “I don’t recall” to each question and lying when he stated that he had not used his arm during the days following the injury.  He was also required to prepare a written statement and refused to do so.  American fired him for lying. 

            At a trial a jury awarded him over $1,000,000, but the Seventh Circuit reversed. It appeared that Casanova’s attorney “hijacked” the trial, getting the jury to focus on the surveillance, and distracting it from the basis for the termination.  Casanova v. American Airlines, Inc., 616 F3rd 695 (7th Cir. 2010)

            The case never should have been tried, the court observed.  The jury decided that because he was injured at work, then spied on and fired, his dismissal was retaliatory.  No, the court said, there was no way a jury could decide that this, rather than his lying, was the reason. 

…Thousands of employees receive workers compensation benefits from American Airlines every without being fired; Casanova himself had received benefits several times yet remained an employee in good standing.  Some baggage handlers have made ten or more compensation claims, returning to active duty after each injury healed.  So a claim for workers compensation does not lead to discharge at American Airlines.  What does – what was the sufficient cause of Casanova’s discharge – is dissembling and insubordination.  American Airlines has a zero tolerance policy for material lies by its workers.  Casanova has not identified any other worker who behaved in a similar fashion at and after an Article 29F hearing and was not fired. Indeed, it is almost impossible to conceive that any employee who conducted himself in this fashion would not be fired, by American Airlines or any other employer that wants to maintain the respect and obedience of its labor force.  If Casanova had been retained on the payroll, American Airlines could have kissed the Article 29F procedure goodbye…. 

            Here are some points to bear in mind: 

a.       An employee, under a procedure that applies to personnel activity generally, who is challenged about the veracity of his comp claim and is blatantly uncooperative and deceitful, may be dismissed from his employment. 

b.      But an employer intent on proceeding with dismissal should have a track record of accepting comp claims and reinstating claimants after their absences. 

c.       Casanova was at a hearing that was conduct under a codified policy and procedure in a collective bargaining agreement.  A less structured interrogation session by management that leads to dismissal may backfire because a court could distinguish the questioning in such an incident from a more procedurally established hearing format. 

d.      Surveillance still may be an issue in discharges, but the law of Illinois has upheld the use of properly conducted surveillance of workers compensation claimants.

 

 

4/29/2011