Claimant Was Fired For Failing to Wear a Life Vest, Not Because He Filed a Longshore Claim

Claimant worked as a welder for Employer.  On June 4, 2010, Claimant injured his low back and groin while lifting an empty gas cylinder.  Claimant took one month off of work, during which time he received temporary total disability benefits.  On July 1, 2010, Claimant returned to work.  Employer’s safety agent told Claimant to wear an employer-provided fire-retardant life vest instead of a personal non-fire-retardant life vest.  Claimant refused.  The next day, Claimant was terminated for insubordination and disrespectful conduct.  Afterwards, Claimant filed a Section 49 discrimination claim.

The Longshore and Harbor Workers’ Compensation Act (“LHWCA”) prohibits employers from discharging or discriminating against an employee based on his claiming or attempting to claim compensation under the LHWCA.  To establish a prima facie discrimination claim, the claimant must demonstrate that his employer committed a discriminatory act motivated by discriminatory animus or intent.  Claimant could not do so in this case:

Claimant does not contest this sequence of events leading up to his discharge on July 2, 1020. Regarding the July 2, 2010 meetings which ended in claimant’s termination, the administrative law judge rationally relied on the testimony of Messrs. Lynch that claimant continued to protest that the life vest issued to him by employer was ill-suited to his work as a welder, that he could not wear that life vest, and that he did not agree to comply with employer’s requirement that he wear the employer-issued life vest while performing his duties.  See generally Newport News Shipbuilding & Dry Dock Co. v. Cherry, 326 F.3d 449, 37 BRBS 7(CRT) (4 th Cir. 2003); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5 th Cir. 1962). Thus, the administrative law judge found that claimant’s termination on July 2, 2010 resulted from his refusal in April 2010 to wear an employer-issued life vest when instructed to do so and his actions on July 1 and 2, 2010, which indicated claimant’s continued refusal to comply with employer’s work requirement. Decision and Order at 36 – 37. Additionally, the administrative law judge concluded that claimant did not establish that he had been treated differently from other employees in like circumstances since Mr. Rappold testified that on at least one other occasion, employer had terminated an employee for his refusal to follow a company directive and that, unlike claimant, other employees who were directed to put on their employer-issued vests immediately did so. Id. at 37; Tr. at 140. Thus, the administrative law judge’s finding that claimant was treated no differently than other employees is supported by substantial evidence. The administrative law judge’s conclusion that claimant failed to establish a discriminatory act motivated by discrimination animus is rational, supported by substantial evidence, and in accordance with law. See, e.g., Hunt v. Newport News Shipbuilding & Dry Dock Co., 28 BRBS 364 (1994), aff’d mem., 61 F.3d 900 (4 th Cir. 1995). Therefore, we affirm the administrative law judge’s determination that employer’s termination of claimant did not violate Section 49 of the Act.

Thomas v. General Ship Repair Corp., BRB No. 13-0286 (BRB Dec. 06, 2013)