In Matter of Romero v. DHL Holdings (USA) Inc., 2019 NY Slip Op 00936 (App. Div. 1st Dept. Feb. 7, 2019), the court affirmed the decision of the Workers’ Compensation Board’s determination that the claimant was discharged for cause, and not in violation of the Workers’ Compensation Law.
The court summarized the law:
Workers’ Compensation Law § 120 prohibits an employer from discriminating against an employee who has filed or who has attempted to file a claim for workers’ compensation benefits by discharging him or her” (Matter of Torrance v Loretto Rest Nursing Home, 61 AD3d 1124, 1125  [citation omitted]; see Matter of Fetahaj v Starbucks Corp., 144 AD3d 1350, 1351 , lv denied 29 NY3d 918 ; Matter of Rodriguez v C & S Wholesale Grocers, Inc., 108 AD3d 848, 849 ). “The burden of proving a retaliatory discharge in violation of the statute lies with the claimant, who must demonstrate a causal nexus between the claimant’s activities in obtaining compensation and the employer’s conduct against him or her” (Matter of Fetahaj v Starbucks Corp., 144 AD3d at 1351 [internal quotation marks, brackets and citations omitted]; see Matter of Torrance v Loretto Rest Nursing Home, 61 AD3d at 1125; Matter of Morgan v New York City Dept. of Correction, 39 AD3d 891, 892 , lv denied 9 NY3d 803 ; Matter of Coscia v Association for the Advancement of Blind & Retarded, 273 AD2d 719, 720 ). “Finally, while Workers’ Compensation Law § 120 was enacted to protect employees against employer retaliation, it was not intended to shield employees from discharge due to their own misconduct[.]
The court held that “[c]laimant has not demonstrated, as he is required to do, that he was discharged in retaliation for filing a claim for workers’ compensation benefits” and that “claimant’s discharge resulted from the provision of the collective bargaining agreement, to which claimant was bound, permitting the employer to terminate claimant’s employment for three consecutive days of unexcused absences from work.”
In addition, “[a]lthough the testimony of claimant and his witnesses, if credited, could support claimant’s contention that his supervisor threatened and verbally insulted him and exhibited an animus towards him, the Board was entitled to credit the record evidence reflecting that the supervisor — as well as the filing of claimant’s workers’ compensation claim — was not involved in, or related to, the decision to terminate claimant’s employment[.]”