Statements By Employer Do Not Establish Discrimination

Michael Bailey v. Paul G. White Tile Co., Inc. – The Appellate Division affirmed a decision of the the ALJ finding the employee failed to establish that his employment was terminated because he asserted or exercised a right, or the termination was rooted substantially in the exercises of his rights under the Workers’ Compensation Act. In Michael Bailey v. Paul G. White Tile Co., Inc., Dec. No. 22-26, Mr. Bailey fell while working on November 19, 2018. He reported a low back injury to the human resources department. He did not lose time from work, made no claim and no payments were made. At a company Christmas party weeks later an owner commented to Mr. Bailey about his back, to which Mr. Bailey replied that he thought it would improve with rest. The owner replied “It better… Your job depends on it.” Six months later on June 3, 2019 Mr. Bailey told the owner that he would be taking a leave of absence for back surgery in November 2019 and that he had secured short term disability for this absence. On June 12, 2019 the owner called Mr. Bailey and terminated his employment for performance reasons. Mr. Bailey later filed a Petition to Remedy Discrimination.

Mr. Bailey argued the facts, including the employers awareness of the work injury, compel a finding that he actually or constructively asserted a claim or a right. The ALJ erred by failing to consider the chilling effect of the owner’s statement at the Christmas party that his job depended on recovery from the work injury. But the ALJ found that despite his claims to the contrary, Mr. Bailey likely characterized his absence from work and need for surgery as non-work-related during the June 3rd conversation. Mr. Bailey never followed through with treatment arranged by his employer and never submitted for payment bills for treatment obtained on his own. Six months had elapsed between the Christmas Party comment and the termination, weakening any connection between the two. The panel found that the ALJ made sufficient findings and there was competent evidence to support the decision.

To view this decision, click here.

If you have any questions about this case or any other workers’ compensation matter, please let us know.

Thomas Getchell
Daniel F. Gilligan