March 24, 2019

Tenth Circuit: Summary Judgment for Employer Reversed in Workers’ Compensation Retaliation Claim

The Tenth Circuit published its opinion in Barlow v. C.R. England, Inc. on Wednesday, December 26, 2012.

Plaintiff Willie Barlow worked for C.R. England (England) as a security guard. He formed a company to provide janitorial service to England and did that in addition to his security job. He filed a workers’ compensation claim in June 2007 after being struck in the head by a heavy gate. He continued working at England in both capacities while receiving workers’ compensation benefits, but had a lifting restriction of 25 pounds. In November 2007, England terminated Barlow’s janitorial contract and fired him in April 2008 from his security guard job. The district court granted summary judgment for England on Barlow’s Title VII and § 1981 race discrimination claims, FLSA overtime claim, and wrongful discharge in violation of public policy claim based on workers’ compensation retaliation.

The Tenth Circuit affirmed summary judgment on the race discrimination claims, holding Barlow failed to establish a prima facie case. The court also affirmed summary judgment for England on the FLSA claim. Barlow alleged he had the status of employee under the FLSA while performing janitorial work and was thus due overtime pay. The court applied the economic realities test and decided Barlow was not an employee for purposes of FLSA coverage while performing his janitorial work.

The court held Barlow had established a prima facie case of retaliatory discharge from his security guard job. England’s site facility manager, Smith, fired Barlow six days after an email exchange with England’s workers’ compensation manager, who expressed frustration with Barlow’s collection of benefits. The court disagreed with England’s argument that timing did not support Barlow’s case because he had filed for benefits 10 months before termination. “Colorado law protects an employee’s ongoing receipt of workers’ compensation benefits, not just the employee’s initial filing.” The Tenth Circuit reversed summary judgment on the retaliatory discharge claim regarding the security job and remanded on the janitor retaliatory discharge claim as it was not clear if the district court applied state or federal law in determining Barlow was an independent contractor rather than an employee.

 

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