In a new Missouri Supreme Court case the court made it easier to sue employers for wrongful discharge. The claimant came back to work after a serious injury and the court describes in great detail the contentious relationship and use of obscenities. Templemire v W&M Welding, Inc., No. SC 93132 (Mo. 4-15-2014); 2014 MO Lexis 111. It is a horn book example from the defense standpoint of bad facts making bad lawTemplemire is not the first, nor by any means the worst, example of perceptions of employers behaving badly. Using obscenities may not be truly outrageous conduct in the world of welding. It may be a fairly common practice in some work environments, and comp should not be a ‘swear jar’ to compensate people for what blue hairs at the symphony might consider offensive. Templemire was accommodated and given an opportunity to return to work. A close look at the case clearly demonstrates why a supervisor might be easily frustrated by claimant’s behavior.
Burke v L&J Food and Liquor Inc., 945 S.W.2d 662 (Mo App. 1997); 1997 Mo App. Lexis 962, is perhaps much more an extreme example. A claimant was not taking care of customers but was in the back room doing drugs. He wasn’t even doing it on his normal break time like Templemiere. The company owners were displeased by the conduct, and beat him senseless allegedly causing permanent brain damage.In fact, Templemire’s supervisor looks like a boss of the year compared to Everhard v Goodwin Bros., 2000 Mo WCLR Lexis 10, in which claimant alleged a nervous breakdown after years of abuse in which claimant alleges his employer threatened to kill him, rape his wife and kill his children with a hatchet.
In a comp system that does not allow punitive damages for behaving badly there is still a lot of discretion for pay back if there is a perception of kicking people when they are down.
For example, in the recent case Davis v Mo Baptist Medical Center, 2014 Mo WCLR Lexis 42 (March 28, 2014), the employer asked the claimant to participate in an investigation for alleged threatening to bring a gun to work and going postal. She was cleared after a few hours and found to not represent a threat. The Commission makes a point, though, to note it cares: “we do not wish to minimize the indignity that employee suffered.” The Commission did not award benefits, but hinted strongly to look outside the comp system. There are few words that maybe the employer did exactly the right thing.
Again, in Patterson v Central Freight Lines, 2014 MO WCLR Lexis 51 (April 11, 2014), the Commission criticized a vocational expert for “trivializ(ing) the daily embarrassment and indignity employee suffers …” That is what makes Patterson much more striking than Davis. It is not just an aspirational goal to make everyone play nice together at work; it imposes a rule of etiquette among experts. It is wrong to even suggest a claim might be bogus without facing a judicial rebuke. Pearson v Henry Wrecker Service, 2012 Mo WCLR Lexis 208 (December 10, 2012)('don’t call me bogus'). Patterson, supra, underscores the same notion that it was wrong to suggest claimant was telling a whopper because medical histories are inconsistent. “We are not persuaded that we need the assistance of Dr. Cantrell in determining whether employee credibly reported the timing or onset of his symptoms…”
Federal employment practitioners learned a long time ago the folly of trying to enforce rules of etiquette with every perceived indiscretion. These recent comp opinions collectively suggest a perception that players in the comp system must behave perfectly because everyone is forced to play in a limited compensation system in which the employer has unequal bargaining power to direct medical care. It is a strange notion indeed to pretend forensic experts on both sides are not advocates, or that fault only exists with one side, or that sometimes in the real world people bring guns to work and very bad things can happen. Sometimes employers must take prompt actions to protect other workers even though someone might find the action undignified in a perfect world.