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Retaliation Claim Upheld Even When Employee Was Only Perceived To Be Engaged In Protected Activity

The United States District Court for the District of Nebraska determined in Middleton v. Douglas County, Nebraska, 8:12CV19 (D.Neb.) that the first element of a prima facie case for unlawful retaliation under Nebraska law—“an employee must show that he or she participated in a protected activity”—may be met in the workers’ compensation context when an employee has not filed a workers’ compensation claim, but the employer believes that the employee intends to do so.  In Middleton, the plaintiff Linda Middleton alleged that her employer “came to her home, intimidated and harassed her regarding a workers’ compensation claim, forced her to go to an employer-approved doctor,” and placed her under surveillance, all in response to the employer’s perception that she would file a workers’ compensation claim.  The plaintiff also alleged that the defendant ultimately terminated her employment because the defendant (inaccurately) believed that she was considering filing a workers’ compensation claim. 

The court held that the perception that an employee intended to engage in a protected activity was sufficient to trigger retaliation protection.  The court further bolstered its opinion by noting that under Nebraska state law, an employee has a right to consider filing a workers’ compensation claim free from employer harassment. 

This may be yet another circumstance where bad facts have made bad law.  The lesson learned for employers is that inquiries concerning possible workers’ compensation claims should be avoided or minimized.  Employees have a statutory right to file a claim for work-related injuries, and the employer should not be seen as taking any actions that could be perceived as interfering with those rights.  The employer has the right to challenge such claims as part of the administrative process after the claim is filed.