Connecticut Appellate Court building in Hartford. Photo: Google
A Connecticut Appellate Court reversal of a Superior Court ruling in a workers' compensation retaliation termination case is part of a continuing trend of similar state cases favoring plaintiffs suing their employer, experts said Friday.
"This ruling could be a big deal. This ruling shows that state law is more advantageous for plaintiffs than the federal law. The Appellate Court applied the 'motivating factor test.' That means a protected class of a plaintiff is a motivating factor in an employer's action. In this case, the plaintiff was in a protected class because he filed a worker' compensation claim," said employment attorney Robert Mitchell, who is not involved in Gibilisco v. Tilcon Connecticut.
Mitchell noted that while federal law has a "but for" test that makes it harder for plaintiffs to sue their employers for discrimination, the state courts don't have that extra burden placed on plaintiff workers.
The "but for" rule in federal cases that states "but for the protected activity, the adverse action would not have been taken" is harder to prove discrimination for plaintiffs, Mitchell said.
"In a nutshell, in state court the plaintiff just has to prove they are a protected class status and that that played a role in the imposition of the adverse employment action," said Mitchell, a partner with Mitchell & Sheahan Attorneys at Law in Stratford and vice chairman of the Connecticut Law Tribune Editorial Board.
"This ruling is one more confirmation that state courts are applying a lower burden of proof in discrimination cases in favor of the plaintiffs," Mitchell said.
In the Gibilisco case, the employee said his termination was directly tied to his filing a workers' compensation claims. The Appellate Court, in overturning the lower court that gave summary judgment to the company, agreed with the plaintiff, who had injured his right elbow on the job at an asphalt plant in 2016.
"Approximately two weeks before the plaintiff received the 2016 seasonal layoff notice without recall, the defendant made the decision to terminate the plaintiff's employment," Appellate Court Judge Bethany Alvord wrote. "We agree that the plaintiff has produced evidence of a sufficiently close temporal connection between the exercise of his rights protected under the [workers' compensation] act and the defendant's adverse action against him."
Tilcon maintained Salvatore Gibilisco violated at least four safety protocols over his 14 years with the company and was terminated because of that. But the Appellate Court said that argument didn't pass muster.
"We agree with the plaintiff that evidence that the plaintiff's work injuries motivated the defendant's decision to terminate the plaintiff, and that his work injuries were not the result of any violation of a company rule or safety policy," the ruling said.
Attorney Michael Reilly, who represented the plaintiff, said Friday: "We thought this was an egregious misapplication of the summary judgment standard by the lower court."
Reilly, an attorney with Ciccihiello & Cicchiello in Hartford, said of the company: "They called it a violation of their safety culture. But that's just a label they gave that was unsupported by any actual evidence. Their own human resources person said my client did nothing wrong."
The matter is now remanded back to Superior Court for trial.
Gregg Adler, an employment attorney with Livingston, Adler, Pudla, Meiklejohn, & Kelly in Hartford, said Friday: "The lesson of this case is if an employer is going to link the discipline of an employee, who has been injured and made workers' compensation claims, to safety incidents, the case will go to trial. I assume a jury will see a connection between the workers' compensation injury claim and the discipline. I'd guess it would go in the plaintiff's favor."
Representing the defendant company are Halloran & Sage attorneys Daniel Krisch, Carl Ficks Jr., and Laura Zaino. Krisch declined to comment, and Ficks and Zaino didn't respond to a request for comment.
Assisting Reilly for the plaintiff's side was his colleague, Manny Ciccihiello.
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Robert Storace
Robert Storace covers legal trends, lawsuits and analysis for the Connecticut Law Tribune. Follow him on Twitter @RobertSCTLaw or reach him at 203-437-5950.