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Can an employee maintain both a workers’ compensation retaliation claim at the same time as he alleges discrimination under the New Jersey Law Against Discrimination (LAD)? That was one issue answered in Larson v. City of Paterson, A-2526-15T4 (App. Div. October 26, 2017).
Carl Larson worked as a firefighter for the City of Paterson from 1987 to 2013. He filed a number of workers’ compensation claims. In 2008 he underwent surgery for his neck from a work-related injury. In March 2010 he injured his left ankle exiting a fire truck and returned to work within two months. In 2010 and 2011 he filed for neck and ankle injuries and settled those cases for $105,876 in early 2013.
Following the approval of the workers’ compensation settlement, Larson was at home for a few days due to a non-work matter when he got a phone call. He was advised that he needed to attend a fitness-for-duty examination. Larson agreed to attend the examination. However, he was told that the Fire Chief wanted him to remain off-duty until further notice.
Larson was concerned and spoke with his union representative, Captain Michael Caposella, who advised that the City was considering termination because of Larson’s numerous workers’ compensation claims. The Captain urged Larson to meet with the Chief. That meeting occurred in mid-March 2013. Larson alleges that he was asked if he was wearing a recording device. The Chief allegedly said that due to his multiple awards, Larson was viewed as a liability. He was further advised that some council members allegedly thought Larson and his doctors were defrauding the city.
Larson said that he did not want to retire. He claimed that the Chief then said, “Well, if you are telling me you are not disabled and you come back to work you are suspended without pay.” Larson was warned that if he fought this issue, he would go one or two years without a paycheck.
Based on this conversation, Larson decided to retire, fearing suspension if he did not do so. He then filed a complaint alleging retaliation under the New Jersey Workers’ Compensation Act and discrimination based on age under the NJLAD. The trial judge dismissed Larson’s workers’ compensation retaliation claim as barred because he also sought a remedy under the NJLAD. The judge reasoned that any claim for being “required to retire” must be filed under the NJLAD.
The Appellate Division disagreed that the NJLAD was Larson’s only remedy. It said that asserting a “required to retire” claim under the NJLAD is quite different from asserting a claim for retaliation on account of assertion of rights to workers’ compensation benefits. The former claim is focused on impermissible acts of discrimination, while common law workers’ compensation retaliation claims are focused on asserting rights under the New Jersey Workers’ Compensation Act.
The Court went on to explain that when one files for age discrimination, for example, he or she must file such a claim under the NJLAD because the NJLAD protects victims of discrimination. But workers’ compensation retaliation claims emanate from the state’s workers’ compensation law. The Court considered Larson’s retaliation claim to assert “constructive discharge.” The Court said “[A] constructive discharge occurs when an employer engages in ‘severe or pervasive’ conduct that is ‘so intolerable . . . a reasonable person would be forced to resign rather than continue to endure it.’” (citations omitted).
The Court concluded that there was sufficient evidence for Larson to prove in a jury trial that he was forced to retire. Larson believed he could return to work and twice requested a fitness-for-duty examination. Nonetheless, according to Larson, he was forced out due to misconceptions about his ability to perform job duties. The Court noted that both sides offered different versions of fact, but if the jury were to accept the version Larson presented to the effect that he would be suspended without pay should he return to work, that would support a jury verdict of discriminatory conduct by the city. The Court summarized, “Based on our review of the record, and viewing the evidence in the light most favorable to plaintiff, we are convinced a reasonable trier of fact could conclude that plaintiff was constructively discharged and forced to retire.”
This case is helpful to practitioners because New Jersey has surprisingly few published and unpublished retaliation claims. It is also helpful because it shows how different a claim is under the NJLAD and the New Jersey Workers’ Compensation Act. In New Jersey, a retaliation claim focuses on the assertion of rights under our workers’ compensation law as opposed to discriminatory conduct.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.