Barry Cosgrove v. Todd Shipyard Corporation, ALJ Clark

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/COSGROVE_BARRY_v_TODD_SHIPYARD_CORPOR_2011LHC00060_(MAY_14_2012)_135817_CADEC_SD.PDF

With thorough analysis, Administrative Law Judge Clark (San Francisco) denies Section 48 claim of discrimination. --

Excerpt:

  Even if Claimant were able to demonstrate that his suspension by Employer was a
discriminatory act made with discriminatory animus or intent, there is no indication that the
suspension was motivated, even in part, by Claimant’s filing of the compensation claim. To be
actionable, “the discrimination must have been motivated by animus against the employee due to
his pursuit of compensation under the Act.” Holliman, 852 F.2d at 761 (emphasis added).
Logically, for the animus to be motivated due to the claimant’s pursuit of compensation under
the Act, the discriminatory act must have occurred after the claimant’s claim for compensation.
Geddes II, 851 F.2d at 442-43. Employer argues that Claimant has not established that his
suspension was the result of filing his workers’ compensation claim, because the suspension was
implemented prior to the filing of the compensation claim on February 9, 2010. ALJX 2 at 10.
The evidence clearly established that Claimant did not file his compensation claim until after he
received his three day suspension for the scaffolding accident. F.F. ¶¶ 1.

There is no evidence to show any compensation claim was made prior to Claimant’s
suspension date of February 1, 2010. Thus, even assuming arguendo that there was a
discriminatory act and discriminatory animus against the Claimant, Claimant has failed to show
that Employer’s actions were motivated, even in part, by Claimant’s pursuit of compensation
under the Act. 33 U.S.C. § 948(a); Holliman, 852 F.2d at 751; Geddes II, 851 F.2d at 443.