TORTS (RETALIATORY DISCHARGE): BISHOP V. MANPOWER INC. OF CENTRAL KENTUCKY (COA 12/15/2006)

BISHOP V.  MANPOWER INC. OF CENTRAL KENTUCKY
TORTS:  Retaliatory discharge following workers compensation claim; summary judgment dismissing reversed
WORKERS COMPENSATION:  Retaliatory discharge
2006-CA-000351
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART AND REMANDING; WINE
DATE RENDERED: 12/15/2006

This appeal arises from a summary judgment dismissing Kevin Bishop’s retaliatory discharge claim against Manpower, Inc. Bishop argued he presented sufficient evidence to rebut Manpower’s stated reasons for terminating him and to prove that Manpower fired him in retaliation for his pursuit of a workers’ compensation claim. Although the COA reversed and remanded his claim that sufficient evidence was presented by him to preclude summary judgment in favor of Manpower, it did ffirm the trial court’s earlier ruling that Bishop is not entitled to pursue punitive damages arising from this claim.

To establish a cause of action for retaliatory discharge, “it is incumbent on the employee to show at a minimum that he was engaged in a statutorily protected activity, that he was discharged, and that there was a connection between the ‘protected activity’ and the discharge.” Willoughby v. GenCorp, Inc., 809 S.W.2d 858, 861 (Ky.App. 1990). Furthermore, KRS 342.197, states in part that an employee may have a cause of action for retaliatory discharge even if he has not yet filed a formal workers’ compensation claim. Overnite Transportation Co. v. Gaddis, 793 S.W.2d 129, 130-31 (Ky.App. 1990).

It is not enough to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.  Thus, an “employer is not free from liability simply because he offers proof he would have discharged the employee anyway, even absent the lawfully impermissible reason, so long as the jury believes the impermissible reason did in fact contribute to the discharge as one of the substantial motivating factors.”

If the employer articulates a legitimate, nonretaliatory reason for the decision, the employee must show that the discriminatory motive was a substantial and motivating reason.  A claimant alleging employment discrimination, either under the civil rights act or under the workers’ compensation act, has the burden of proving that the employer’s stated reasons were pretextual. The claimant may demonstrate pretext either by direct or circumstantial evidence of a discriminatory motive. Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 700 (Ky.App. 1991). 

The supervisor admitted that she did not check Bishop’s absentee record until after Bishop began pursuing workers’ compensation benefits. But after Bishop pursued his workers’ compensation claim, the decision makers at Manpower began to scrutinize his employment record more closely. Such conduct may raise an inference that Manpower’s decision was substantially motivated by a discriminatory intent.  Accordingly, the judgment of the Fayette Circuit Courtdismissing Bishop’s retaliatory discharge claim is reversed.

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