ANTICIPATED EXERCISE OF WORKERS’ COMPENSATION RIGHTS CANNOT BE A BASIS FOR A RETALIATION CLAIM

In the case of Vaughn v Vanguard Concrete Coating, Inc, an unpublished Michigan Court of Appeals Decision (Case No. 326305, May 19, 2016), the court decided the question of whether the employee, Mr. Vaughn, had been wrongfully terminated by his employer, Vanguard Concrete Coating, Inc., in retaliation for protected activities under the Michigan Workers’ Disability Compensation Act.

On January 6, 2014, the employee was working for the employer when he felt dizzy and hurt his back, after which he went home early and then went to the hospital. He took 2 days off of work and returned to work on January 10. While working that day, one of his co-workers heard him say something about suing the employer, and also heard him encourage another worker to slow down his work. The employer was informed of the worker’s comments and confronted the worker. The worker initially denied making the comments, but did not deny making them after the employer asked the co-worker to repeat the comments he heard the worker make. After this conversation, the worker was suspended, and after further communication, his employment ended on January 16, 2014. The worker then sued the employer, claiming that he was terminated in retaliation for protected activities under the workers’ compensation statute.

During the course of the Circuit Court litigation, both the employer and the employee filed motions for summary disposition. They asked the court to decide the legal issue based upon undisputed facts presented to the court. The Circuit Court granted the employer’s motion and denied plaintiff’s motion, dismissing plaintiff’s case. In an unpublished, per curium opinion, a 3-member panel of the Court of Appeals affirmed the Circuit Court’s dismissal of plaintiff’s case. The court held that plaintiff’s later statement, upon his return to work, referencing suing the employer in the future, was not evidence of a protected activity. The court held that an anticipated exercise of rights under the workers’ compensation statute cannot be a basis for a claim of retaliation. Therefore, the court held plaintiff had failed to meet his burden of proof to demonstrate that he had exercised a right under the workers’ compensation statute for which the employer could have retaliated against plaintiff. Plaintiff had not actually pursued a workers’ compensation claim. He had merely said something about suing the employer to a co-worker.

Unpublished opinions of the Court of Appeals are not precedential. However, they provide guidance on how one panel of the Court of Appeals has decided one, fact-specific, issue.

If you have any questions or would like to discuss the court’s holding in this case, please contact us at your convenience.

Thank you!

Len Hickey & John Combs

Hickey Combs PLC

3358 Eagle Run Dr., NE, Ste. 100

Grand Rapids, MI 49525

Phone:  (616) 364-2550

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website:  www.hickeycombs.com

06/24/16