How do you prove a firing is retaliatory?
Chicago, IL Personal Injury Attorney Mark P. Loftus describes how he can prove a firing of an employee is retaliatory.
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Retaliatory discharge claim arises, for example, when an individual asserts a statutory right that he has. For example, file workers’ comp claim. He gets hurt at work, he files a workers’ comp claim, which is perfectly appropriate. Retaliatory cases arise when not long after filing his workers’ comp claim, this individual suddenly finds himself without a job. And my job, when this person comes to my office, is to prove that that firing is related to the fact that he filed a workers’ compensation case.
And they’re not easy cases, and they’re typically circumstantially driven. The evidence is circumstantial because the employers are smart enough. They never put anything in writing; “Let’s get rid of this guy because he filed a workers’ comp case.” They’re a little more sneaky the way that they do it. For example, I had one case where a pipe-fitter had a terrible injury at work, filed his workers’ comp case, and not long after he got filed, he got fired.
In the course of discovery, it turned out that they said they tried to give him – tried to replace his job that he could no longer do by making him a draftsman and that they weren’t punishing him for filing a workers’ comp claim, they were firing him because he wasn’t doing his job as a draftsman.
So, as the case unfolded, we took depositions and found out that they would put him in a room with a bunch of draftsman, and they wouldn’t give him a computer and they wouldn’t give him any righting implements or paper or drawing paper work. They would sit him in this room without the appropriate tools to do his job, and then at the end of the day they would look at him and say, “Well, jeez, you’re not coming up with the drawings that we expect you to come up with as a draftsman.”
And those types of circumstances show that the employer has a pretext. It’s not a genuine reason for firing somebody. It’s that they’ve created some sort of excuse to fire one, to fire the employee. And then when you attack the excuse and start looking at why did he really get fired, you find out that he got fired precisely because he filed the workers’ comp claim.
Again, in that case, my client was fired for alleged poor productivity, and it turned out that they would put him in a room and deprive him of all the instruments he needed to actually create documents. And the defense lawyers after those depositions were conducted realized they had a problem on their hands, and the case resolved not long thereafter.