MILLER, Chief Justice:
Wyoming Cablevision, Inc. (the employer), the defendant below, appeals a final order of the Circuit Court of Wyoming County, dated September 25, 1989. The employer asserts that there was insufficient evidence presented at trial to find that it had discharged Timothy Powell, one of its employees, in violation of W.Va.Code, 23-5A-1 (1978).
The employer further contends that the trial court erred in refusing to offset Mr. Powell’s unemployment compensation benefits against the jury verdict. We disagree, and, accordingly, we affirm the judgment of the lower court.
I.
Timothy Powell was employed as a chief installer for the employer from February, 1983, until October, 1986. His duties included climbing utility poles and running cable lines from the poles to the exterior of homes. On May 22, 1986, Mr. Powell injured the heel of his right foot when he had to jump for safety because the pole he had climbed began to fall.
Mr. Powell was unable to return to work immediately and began receiving temporary total disability (TTD) benefits from workers’ compensation. He regularly kept in telephone contact with his employer’s office. On August 14, 1986, Mr. Powell’s treating physician wrote the employer and advised it that Mr. Powell’s recovery could take up to six months. Sometime in late August or early September of 1986, Mr. Powell, apparently on crutches, appeared at the employer’s office and inquired if there was any work he might do. He was advised that he could work in the shop repairing converters. Mr. Powell checked with his doctor, who advised him not to do any work that would prohibit him from keeping his foot elevated, and, therefore, he declined this offer.
On October 6,1986, Mr. Powell’s supervisor wrote him that “[i]t is ... our understanding that you will not be able to resume your normal work duties until some undetermined time in the future.”
Accordingly, Mr. Powell was informed that he had “been removed from the Company payroll records.”
Mr. Powell was released to return to work on May 26,1987. He immediately reapplied for his old job; however, the employer refused to rehire him.
On October 23, 1987, Mr. Powell filed suit against the employer alleging that he had been fired in retaliation for filing a workers’ compensation claim. Following a two-day trial, the jury awarded Mr. Powell $12,900 in back wages, representing the time from his release to return to work until he secured other employment in February, 1988. The employer appeals.
II.
Independent of W.Va.Code, 23-5A-1, we established the principle in
Harless v. First National Bank in Fairmont,
162 W.Va. 116, 246 S.E.2d 270 (1978), that an at-will employee may seek damages from his employer if the employee’s discharge contravenes a substantial principle of public policy.
The first occasion we had to address W.Va.Code, 23-5A-1, was in
Shanholtz v. Monongahela Power Co.,
165 W.Va. 305, 270 S.E.2d 178 (1980). We recognized, as had other courts, that an employee who is discharged in retaliation for seeking workers’ compensation benefits has a cause of action against his employer.
E.g., Sventko v. Kroger Co.,
69 Mich.App. 644, 245 N.W.2d 151 (1976);
Frampton v. Central Indiana Gas Co.,
260 Ind. 249, 297 N.E.2d
425 (1973).
We also held that in the absence of a specific statute, the appropriate statute of limitations was two years, and found Shanholtz’s claim to be time barred. Finally, we held that W.Va.Code, 23-5A-1, should be applied prospectively, and made this comment:
“The statute confers a substantive right upon employees who may be discriminated against in retaliation for their ‘receipt of or attempt to receive benefits under this [Workmen’s Compensation] chapter.’ It is a codification of what we perceive to be the law, that is, it is a contravention of public policy and actionable to discharge an employee because he filed a workmen’s compensation claim against his employer.” 165 W.Va. at 312, 270 S.E.2d at 183. (Citations omitted).
Five years later, in
Yoho v. Triangle PWC, Inc.,
175 W.Va. 556, 336 S.E.2d 204 (1985), we were once again asked to find a violation of W.Va.Code, 23-5A-1. The employee had suffered a serious work-related injury, had received workers’ compensation benefits, and was unable to return to work immediately. Pursuant to the terms of the collective bargaining agreement, the employee was discharged when she was absent from work for the preceding twelvemonth period. We found W.Va.Code, 23-5A-1, inapplicable because the employee “would have been terminated just as quickly under the collective bargaining agreement if she had never applied for those benefits.” 175 W.Va. at 562, 336 S.E.2d at 210.
As is apparent from the brief review of our prior decisions, we have not fully addressed the substance of this statute.
Because many statutes, like ours, use the term “discriminate,” courts have found guidance in the proof schemes of other antidiscrimination statutes. Ordinarily, the burden is on the plaintiff to prove a prima facie case. If this case is made, the defendant is required to prove some nondiscriminatory basis for its action. Thereafter, the plaintiff must show that the stated reason for the adverse action is untrue or pretextual.
See, e.g., Twilley v. Daubert Coated Prods., Inc.,
536 So.2d 1364 (Ala.1988);
Axel v. Duffy-Mott Co., Inc.,
47 N.Y.2d 1, 416 N.Y.S.2d 554, 389 N.E.2d 1075 (1979);
Buckner v. General Motors Corp.,
760 P.2d 803 (Okla.1988).
We have applied this same burden in discrimination cases in which a violation of our West Virginia Human Rights Act, W.Va.Code, 5-11-1,
et seq.,
is alleged.
See, e.g., City of Ripley v. West Virginia Human Rights Comm’n,
179 W.Va. 375, 369 S.E.2d 226 (1988);
Conaway v. Eastern Associated Coal Corp.,
178 W.Va. 164, 358 S.E.2d 423 (1986);
State ex rel. West Virginia Human Rights Comm’n v. Logan-Mingo Area Mental Health Agency, Inc.,
174 W.Va. 711, 329 S.E.2d 77 (1985);
Shepherdstown Volunteer Fire Dep’t v. West Virginia Human Rights Comm’n,
172 W.Va. 627, 309 S.E.2d 342 (1983).
Several states have statutes specifying that the discharge must be shown to have been motivated
solely
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MILLER, Chief Justice:
Wyoming Cablevision, Inc. (the employer), the defendant below, appeals a final order of the Circuit Court of Wyoming County, dated September 25, 1989. The employer asserts that there was insufficient evidence presented at trial to find that it had discharged Timothy Powell, one of its employees, in violation of W.Va.Code, 23-5A-1 (1978).
The employer further contends that the trial court erred in refusing to offset Mr. Powell’s unemployment compensation benefits against the jury verdict. We disagree, and, accordingly, we affirm the judgment of the lower court.
I.
Timothy Powell was employed as a chief installer for the employer from February, 1983, until October, 1986. His duties included climbing utility poles and running cable lines from the poles to the exterior of homes. On May 22, 1986, Mr. Powell injured the heel of his right foot when he had to jump for safety because the pole he had climbed began to fall.
Mr. Powell was unable to return to work immediately and began receiving temporary total disability (TTD) benefits from workers’ compensation. He regularly kept in telephone contact with his employer’s office. On August 14, 1986, Mr. Powell’s treating physician wrote the employer and advised it that Mr. Powell’s recovery could take up to six months. Sometime in late August or early September of 1986, Mr. Powell, apparently on crutches, appeared at the employer’s office and inquired if there was any work he might do. He was advised that he could work in the shop repairing converters. Mr. Powell checked with his doctor, who advised him not to do any work that would prohibit him from keeping his foot elevated, and, therefore, he declined this offer.
On October 6,1986, Mr. Powell’s supervisor wrote him that “[i]t is ... our understanding that you will not be able to resume your normal work duties until some undetermined time in the future.”
Accordingly, Mr. Powell was informed that he had “been removed from the Company payroll records.”
Mr. Powell was released to return to work on May 26,1987. He immediately reapplied for his old job; however, the employer refused to rehire him.
On October 23, 1987, Mr. Powell filed suit against the employer alleging that he had been fired in retaliation for filing a workers’ compensation claim. Following a two-day trial, the jury awarded Mr. Powell $12,900 in back wages, representing the time from his release to return to work until he secured other employment in February, 1988. The employer appeals.
II.
Independent of W.Va.Code, 23-5A-1, we established the principle in
Harless v. First National Bank in Fairmont,
162 W.Va. 116, 246 S.E.2d 270 (1978), that an at-will employee may seek damages from his employer if the employee’s discharge contravenes a substantial principle of public policy.
The first occasion we had to address W.Va.Code, 23-5A-1, was in
Shanholtz v. Monongahela Power Co.,
165 W.Va. 305, 270 S.E.2d 178 (1980). We recognized, as had other courts, that an employee who is discharged in retaliation for seeking workers’ compensation benefits has a cause of action against his employer.
E.g., Sventko v. Kroger Co.,
69 Mich.App. 644, 245 N.W.2d 151 (1976);
Frampton v. Central Indiana Gas Co.,
260 Ind. 249, 297 N.E.2d
425 (1973).
We also held that in the absence of a specific statute, the appropriate statute of limitations was two years, and found Shanholtz’s claim to be time barred. Finally, we held that W.Va.Code, 23-5A-1, should be applied prospectively, and made this comment:
“The statute confers a substantive right upon employees who may be discriminated against in retaliation for their ‘receipt of or attempt to receive benefits under this [Workmen’s Compensation] chapter.’ It is a codification of what we perceive to be the law, that is, it is a contravention of public policy and actionable to discharge an employee because he filed a workmen’s compensation claim against his employer.” 165 W.Va. at 312, 270 S.E.2d at 183. (Citations omitted).
Five years later, in
Yoho v. Triangle PWC, Inc.,
175 W.Va. 556, 336 S.E.2d 204 (1985), we were once again asked to find a violation of W.Va.Code, 23-5A-1. The employee had suffered a serious work-related injury, had received workers’ compensation benefits, and was unable to return to work immediately. Pursuant to the terms of the collective bargaining agreement, the employee was discharged when she was absent from work for the preceding twelvemonth period. We found W.Va.Code, 23-5A-1, inapplicable because the employee “would have been terminated just as quickly under the collective bargaining agreement if she had never applied for those benefits.” 175 W.Va. at 562, 336 S.E.2d at 210.
As is apparent from the brief review of our prior decisions, we have not fully addressed the substance of this statute.
Because many statutes, like ours, use the term “discriminate,” courts have found guidance in the proof schemes of other antidiscrimination statutes. Ordinarily, the burden is on the plaintiff to prove a prima facie case. If this case is made, the defendant is required to prove some nondiscriminatory basis for its action. Thereafter, the plaintiff must show that the stated reason for the adverse action is untrue or pretextual.
See, e.g., Twilley v. Daubert Coated Prods., Inc.,
536 So.2d 1364 (Ala.1988);
Axel v. Duffy-Mott Co., Inc.,
47 N.Y.2d 1, 416 N.Y.S.2d 554, 389 N.E.2d 1075 (1979);
Buckner v. General Motors Corp.,
760 P.2d 803 (Okla.1988).
We have applied this same burden in discrimination cases in which a violation of our West Virginia Human Rights Act, W.Va.Code, 5-11-1,
et seq.,
is alleged.
See, e.g., City of Ripley v. West Virginia Human Rights Comm’n,
179 W.Va. 375, 369 S.E.2d 226 (1988);
Conaway v. Eastern Associated Coal Corp.,
178 W.Va. 164, 358 S.E.2d 423 (1986);
State ex rel. West Virginia Human Rights Comm’n v. Logan-Mingo Area Mental Health Agency, Inc.,
174 W.Va. 711, 329 S.E.2d 77 (1985);
Shepherdstown Volunteer Fire Dep’t v. West Virginia Human Rights Comm’n,
172 W.Va. 627, 309 S.E.2d 342 (1983).
Several states have statutes specifying that the discharge must be shown to have been motivated
solely
by the filing of the compensation claim.
In the absence of such an express statutory provision, most jurisdictions have found that an employee need only show that the filing of a workers’ compensation claim was a substantial factor in bringing about his demotion or termination from employment. A typical statement of the rule is given by the Oklahoma Supreme Court in
Thompson v. Med
ley Material Handling, Inc.,
732 P.2d 461, 463 (Okla.1987):
“[A]n employee may not be discharged
because
of the exercise of rights under the Workers’ Compensation Act.... We hold that when retaliatory motivations comprise a significant factor in an employer’s decision to terminate an employee, even though other legitimate reasons exist to justify the termination, the discharge violates the intent of section 5.” (Emphasis in original; footnote omitted).
See also Delano v. City of South Portland,
405 A.2d 222 (Me.1979);
Goins v. Ford Motor Co.,
131 Mich.App. 185, 347 N.W.2d 184 (1983);
Santex, Inc. v. Cunningham,
618 S.W.2d 557 (Tex.Civ.App.1981).
See generally
2A
Larson’s Workers’ Compensation Law
§ 68.36(c) (1989 & Supp.1990).
Accordingly, we hold that in order to make a prima facie case of discrimination under W.Va.Code, 23-5A-1, the employee must prove that: (1) an on-the-job injury was sustained; (2) proceedings were instituted under the Workers’ Compensation Act, W.Va.Code, 23-1-1,
et seq.;
and (3) the filing of a workers’ compensation claim was a significant factor in the employer’s decision to discharge or otherwise discriminate against the employee.
In determining whether there is a nexus between the filing of the workers’ compensation claim and the discharge, we take heed of this warning by the New York Court of Appeals in
Axel v. Duffy-Mott Co.,
47 N.Y.2d at 6, 416 N.Y.S.2d at 556, 389 N.E.2d at 1077:
“[I]n a case premised on an alleged violation of a statute purposed to counter retaliation or other discrimination, we must keep in mind that those engaged in such conduct rarely broadcast their intentions to the world. Rather, employers who practice retaliation may be expected to seek to avoid detection, and it is hardly to be supposed that they will not try to accomplish their aims by subtle rather than obvious methods.... Moreover, employers are vested with considerable discretion in the hiring and firing of their employees so as to maintain an efficient and productive work force, and the visible manifestations of even a most improperly motivated discharge may be difficult to sort out from a nonretaliatory exercise of this discretion.” (Citations omitted).
Because of the usual lack of direct evidence, courts have looked to a variety of factors. Proximity in time of the claim and the firing is relevant, of course. Evidence of satisfactory work performance and supervisory evaluations before the accident can rebut an employer’s claim of poor job performance. Any evidence of an actual pattern of harassing conduct for submitting the claim is very persuasive.
E.g., Axel v. Duffy-Mott Co., supra
(immediately after claimant filed for workers’ compensation benefits, adverse comments began to appear in her personnel file about her work performance and appearance);
Elzey v. Forest,
739 P.2d 999 (Okla.1987) (supervisor told employee that he was jeopardizing job by seeking treatment from doctors whose practices were associated with workers’ compensation claimants).
Cf. Milner v. Stepan Chem. Co.,
599 F.Supp. 358 (D.Mass.1984) (following a work-related accident, the employee’s supervisor repeatedly harassed him about not reporting the
injury so as not to spoil the company’s safety record).
See generally
2A
Larson’s Workers’ Compensation Law
§ 68.36(d) at pp. 13-187 to 13-188.
When an employee makes a prima facie case of discrimination, the burden then shifts to the employer to prove a legitimate, nonpretextual, and nonretaliatory reason for the discharge.
See, e.g., Gondolfi v. Mid-Gulf Stevedores,
621 F.2d 695 (5th Cir.1980) (discharge for unexplained tardiness);
Pientka v. Board of Fire Comm’rs,
125 Ill.App.3d 124, 80 Ill.Dec. 565, 465 N.E.2d 677 (1984) (plaintiff had previously filed a false workers’ compensation claim);
Davenport v. City of Des Moines,
430 N.W.2d 405 (Iowa 1988) (loss of driver’s license prevented employee from performing all of his job tasks);
Owens v. Georgia Pac. Corp.,
535 So.2d 990 (La.App.1988) (numerous warnings for excessive absenteeism prior to work-related injury);
Vollenweider v. New Orleans Pub. Serv., Inc.,
466 So.2d 804 (La.App.),
writ denied,
468 So.2d 577 (La.1985) (employee’s failure to follow company policy). Other legitimate reasons can arise from business conditions, such as general layoffs involving employees who have not filed compensation claims.
See generally
2A
Larson’s Workers’ Compensation Law
§ 68.36(d). In rebuttal, the employee can then offer evidence that the employer’s proffered reason for the discharge is merely a pretext for the discriminatory act.
See Twilley v. Daubert Coated Prods. Co., supra; Buckner v. General Motors Corp., supra.
A more difficult issue arises when an employer fires the worker because he appears unable to resume his former duties or because of a lengthy injury-related absence. Where the employer has a neutral absenteeism policy that permits discharge of an employee who is absent for a specific period of time, courts have generally held that termination of employment under such a policy does not violate a compensation antidiscrimination statute. We used a similar rationale in
Yoho,
where the collective bargaining agreement permitted termination of any employee who was on a leave of absence for more than one year regardless of the reason for the absence.
See also Smith v. Electric Sys. Div. of Bristol Corp.,
557 N.E.2d 711 (Ind.App.1990);
Rowland v. Val-Agri, Inc.,
13 Kan.App.2d 149, 766 P.2d 819 (1988);
Galante v. Sandoz, Inc.,
192 N.J.Super. 403, 470 A.2d 45 (1983),
appeal aff'd,
196 N.J.Super. 568, 483 A.2d 829 (1984);
Duncan v. New York State Dev. Cen.,
63 N.Y.2d 128, 481 N.Y.S.2d 22, 470 N.E.2d 820 (1984).
Where, as here, the company does not have a written absenteeism policy, the answer is not so easy. It appears that courts have attempted to set a standard which involves several factors.
The court will
look to see how quickly the employer terminated the employee after compensation benefits were sought. The severity of the injury as it relates to the employee’s ability to perform his accustomed work is also important. Obviously, where the employee has suffered a severe injury that forever limits the employee’s ability to perform his accustomed work, the employer should not be penalized for discharging the employee. Where the injury is less serious, further consideration must be given to what is a reasonable recovery period viewed again with the prospect of when the employee will be able to perform his accustomed work. In this regard, the employer is entitled to show that it is economically unfeasible to keep the job open or to hire a temporary substitute.
Illustrative of cases where there has been a prolonged absence as a result of the work-related injury is
Kern v. South Baltimore General Hospital,
66 Md.App. 441, 504 A.2d 1154 (1986). There, the employee filed a workers’ compensation claim after suffering a hand injury. The employee was absent 249 days from work over a two-year period and was fired for excessive absenteeism, even though she claimed that most of her absences were due to the injury. The Maryland court refused to find that the employee had been a victim of a retaliatory discharge:'
“In conclusion, we hold that an employee’s protection from discharge in retaliation for claiming statutory benefits does not include protection for excessive absence from work due to work-related injury.
If an employee is disabled on the job and is no longer qualified to perform the duties of his or her job, an employer may terminate that employee when it becomes obvious that the period of disability is not determinable.
This interpretation of § 39A and Art. 101 does not tend, as appellant fears, to discourage employees from seeking medical attention and compensation.” 66 Md.App. at 452, 504 A.2d at 1159. (Emphasis added; footnote omitted).
A similar result was reached in
Pericich v. Climatrol, Inc.,
523 So.2d 684 (Pla.App. 1988), where the employee injured his back, received workers’ compensation benefits, and was placed on light duty until his injury improved. Fourteen months later, the employer informed the employee that it was economically infeasible to continue to employ him. In refusing to find that the claimant had been discharged in retaliation for filing a workers’ compensation claim, the Florida court explained that “[o]nly when it became apparent Pericich would be physically unable to resume his former position and it was economically infeasible to continue to employ him at less than full duty was he terminated.” 523 So.2d at 686.
Where the injury is not severe and the recovery period is not lengthy, courts are inclined to entrust the question of retaliatory discharge to the jury. In
Burrow v. Westinghouse Electric Corp.,
88 N.C.App. 347, 363 S.E.2d 215,
review denied,
322 N.C. 111, 367 S.E.2d 910 (1988), the trial court had granted the employer’s motion for summary judgment on the retaliatory discharge issue. The employee had injured his leg in early 1985 and returned to work
in June 1985 with a 10 to 15 percent permanent partial disability. Shortly after he returned to work, the employee’s leg began to bother him, and he left work early to see a doctor. When he attempted to return to work, he was fired. The appellate court concluded that retaliation was a jury issue.
In
Horn v. Davis Electric Constructors, Inc.,
395 S.E.2d 724, 727 (S.C.App.1990), the court characterized the employer’s duty as follows:
“We therefore hold that while an employer may discharge an employee who is not permanently totally disabled for inability to perform the duties for which he was hired, the employer must afford the employee a reasonable period of time to demonstrate that he will be able to perform his duties after an injury.” (Footnote omitted).
See also Slover v. Brown,
140 Ill.App.3d 618, 94 Ill.Dec. 856, 488 N.E.2d 1103 (1986).
III.
The employer contends that there was insufficient evidence to support a claim for retaliatory discharge. In Syllabus Point 5 of
Orr v. Crowder,
173 W.Va. 335, 315 S.E.2d 593 (1983),
cert. denied,
469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984), we prescribed the factors a reviewing court should consider in ascertaining whether there was sufficient evidence to support a jury verdict:
“In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.”
In the case at bar, we believe the employee proved a prima facie case. He established that he was employed, he sustained a work-related injury, and he filed for and received workers’ compensation benefits. He also presented evidence that his filing of a workers’ compensation claim was a significant factor in his termination. The employer’s October 6, 1986 letter to the plaintiff indicated that he was being discharged because of his compensable injury. In response, the employer proffered two legitimate reasons for the employee’s discharge. The employer contended that the local economy was so bad that the number of cable subscribers had fallen dramatically. This loss of business forced the employer to lay off several employees. Alternatively, the employer argued that Mr. Powell was physically unable to do the job.
In rebuttal, the employee introduced evidence that the employer had maintained the same number of installers during the entire time he was on workers’ compensation, had run a help-wanted advertisement in the local newspaper seeking an installer, and had actually hired an installer shortly before Mr. Powell reapplied for his old position. Moreover, when Mr. Powell was physically able to return to work and asked to be rehired, the employer simply told him no without excuse or explanation.
With regard to the employer’s claim that Mr. Powell was physically unable to do the work, the evidence showed that within a year of the injury, he was certified by a doctor to return to work. The argument at trial centered on whether the plaintiff’s temporary disability justified the employer’s decision to fire him four months after the injury. The trial court considered this to be a jury issue, and the employer’s instructions relating to its right to terminate were given.
We have reviewed the record and find that there was sufficient evidence presented at trial for the jury to find that the employer violated W.Va.Code, 23-5A-1.
IV.
Finally, the employer contends that the trial court erred in refusing to offset Mr. Powell’s unemployment compensation benefits against the jury verdict.
We addressed and rejected this same argument in
Orr v. Crowder,
173 W.Va. at 351, 315 S.E.2d at 610, and held: “[T]he trial court did not commit error in holding that unemployment benefits may not be used to reduce an award of damages under the collateral source rule.” (Citations omitted).
As aptly stated by the California Court of Appeals in
Billetter v. Posell,
94 Cal. App.2d 858, 860, 211 P.2d 621, 623 (1949): “Benefits of this character are intended to alleviate the distress of unemployment and not to diminish the amount which an employer must pay as damages for the wrongful discharge of an employee.” (Citations omitted).
See also Washington Welfare Ass’n, Inc. v. Poindexter,
479 A.2d 313 (D.C.App.1984);
Schwarze v. Solo Cup Co.,
112 Ill.App.3d 632, 68 Ill.Dec. 228, 445 N.E.2d 872 (1983);
Sporn v. Celebrity, Inc.,
129 N.J.Super. 449, 324 A.2d 71 (1974);
Hall v. Hotel L’Europe, Inc.,
69 N.C.App. 664, 318 S.E.2d 99 (1984);
Lambert v. Equinox House, Inc.,
126 Vt. 229, 227 A.2d 403 (1967);
Dehnart v. Waukesha Brewing Co.,
21 Wis.2d 583, 124 N.W.2d 664 (1963).
See generally
22 Am.Jur.2d
Damages
§ 585 (1988 & Supp.1990). We find no error.
For the foregoing reasons, the judgment of the Circuit Court of Wyoming County is affirmed.
Affirmed.