The plaintiff was a cashier who had filed a workers compensation claim. While the claim was pending, she was questioned about a number of unusual transactions traced to her register. She was interviewed by a loss prevention officer. At the conclusion of the investigation, she was terminated on the same day that two other employees who had also filed workers compensation claims were terminated. She filed suit, and her case was tried before a jury. At the conclusion of plaintiff's case, the trial court granted a direct verdict to defendants on this issue.
The court of appeals stated the only evidence presented was that she was fired while her workers compensation claim was pending and that two other workers who had filed claims were terminated on the same day. There was no evidence linking the her claim to her termination. The loss prevention officer had no knowledge of the workers compensation claim. The store manager who may have had knowledge of the claim played no significant role in the decision to investigate and to terminate the employee.
With respect to the other workers who were terminated, the plaintiff failed to present any circumstances concerning the two terminations, other than that there were claims pending. As a result, plaintiff failed to produce any evidence which might have given rise to an inference of discrimination.
The court of appeals noted that there was substantial evidence to indicate that the termination was justified. In addition to the fact that the investigating representative had no knowledge of the claim, the court noted that plaintiff was the only employee who had 19 questionable transactions in one week while other cashiers who had questionable transactions were spread out over 5 weeks to 3 months. As a result, the other cashiers were not similarly situated. In light of the absence of direct or cumulative evidence showing a retaliatory motivation on the part of the company, the jury would have been left to speculate whether plaintiff was fired for mishandling the cash register or out a desire to punish her for filing her claim.
The court's decision re-affirmed that the mere fact a claim was pending when a termination took place will not be sufficient to establish a retaliatory discharge claim. The fact that the company's representative did not have knowledge of the claim was a key factor. At the end of the day, the plaintiff must present proof, not speculation, to get to the jury.