SMEIGH v. JOHNS MANVILLE, INC. (June 29, 2011)

For years, Aaron Smeigh was a model employee at Johns Manville. He had a spotless record. That changed in September of 2008. It was then that Smeigh severed his finger at work. While awaiting the arrival of an ambulance, Smeigh told his supervisor that he did not take drugs but that he might not be able to pass a drug test. He said it was because he had recently been in a room where marijuana had been smoked. The supervisor told the plant manager that Smeigh might not pass a drug test. In fact, Smeigh took a drug test at the hospital and it came back negative. The company considered whether Smeigh's statement violated Johns Manville's substance abuse policy. A human resources manager decided that it was. The company decided to allow Smeigh to keep his job if he entered into a Stipulation of Understanding. The stipulation would require him to meet with a counselor, submit to random drug and alcohol tests, and possibly pay for the tests. Smeigh refused to sign the agreement and the company fired him. After the union filed a grievance, the company offered to hire him back if he passed a drug test and agreed to be subject to random drug tests over two years. Again, Smeigh refused. A union secretary cleaned out his locker to separate company property from personal property. Someone apparently stole some of his personal property before it was returned to him. Smeigh brought suit for unlawful discharge in retaliation for filing a workers' compensation claim and for civil conversion under state law. Judge Pratt (S.D. Ind.) granted summary judgment to the company. Smeigh appeals

In their opinion, Judges Flaum, Evans, and Tinder affirmed. Although an employee can recover damages if he has been terminated for filing a workers' compensation claim, he must present evidence that his termination was solely in retaliation for filing such a claim. Here, Smeigh relies on indirect evidence of causation. In fact, he relies almost exclusively on timing. The Court noted the timing is rarely sufficient, by itself, to create a question of fact. In addition, here there is an intervening event -- his refusal to sign the stipulation. The Court noted that the record shows that the company actually submitted the workers’ compensation claim on his behalf, wanted him to sign the stipulation and retain his job, and was willing to reinstate him a few months later. No reasonable jury could find in his favor. The Court also affirmed on the conversion count. In order to prevail on such a claim, a plaintiff must prove criminal intent. Here, company policy required a company employee to clear out a terminated employee's locker, separate company property from personal property, and return the personal property. The record shows that the employee's control over Smeigh's property was authorized or, at least, she had a reasonable belief that it was. In addition, the only defendant is the company and there is no evidence in the record that the company knew that the employee continued to possess Smeigh's property and Smeigh did not argue vicarious liability. The Court chastised Smeigh for even including the conversion count in the appeal without even explaining his rationale for disagreeing with the district court's analysis. Notwithstanding its criticism, the Court declined to impose sanctions.