Filing workers’ comp claim isn’t protected speech

Thursday, October 11, 2012

Filing a claim for workers’ compensation is not First Amendment-protected activity, a federal judge in Pennsylvania has ruled.

Tina Francis, an administrative assistant in the Dauphin County Sheriff’s Office, sued the county and Sheriff Jack Lotwick after she was discharged. Francis contended the defendants fired her in retaliation for filing two workers’ compensation claims for carpal tunnel syndrome.

Francis argued that the act of filing a workers’ compensation claim was a form of protected speech and petition under the First Amendment. However, U.S. District Judge William W. Caldwell ruled Oct. 4 in Francis v. Lotwick that her First Amendment claims failed.

Public employees do not lose all of their First Amendment free-speech rights when they accept public employment. However, in order to establish a First Amendment claim, an aggrieved public employee must show he or she had spoken on a matter of public concern or importance. Caldwell recognized that the public-concern requirement applied apart from whether or not Francis’ workers’ compensation claims were recognized as speech or petition: “a subject matter of public concern is essential, regardless of whether the conduct at issue is speech or petitioning conduct.”

Francis argued that filing a workers’ compensation claim did touch on matters of public concern, because the Pennsylvania Supreme Court had ruled that “termination of an at-will employee for filing a workers’ compensation claim violates public policy.” In other words, conduct protected by public policy must address matters of public concern.

Caldwell rejected this reasoning, noting that the Pennsylvania Supreme Court simply meant that retaliating against an employee for filing a workers’ compensation claim is wrong. It does not mean that such conduct is protected by the First Amendment. Instead Caldwell determined “that [Francis] has failed to show that she engaged in protected speech or petitioning conduct relating to a matter of public concern, and therefore, we will dismiss her First Amendment claims.”

Caldwell noted, however, that Francis could file a retaliation claim under state law in state court.

Tags: , , ,