By Debra H. Dawahare
Every experienced litigator knows that retaliation cases are hard to win, and Kentucky’s Court of Appeals may recently have made the challenge even greater. In Colorama, Inc. v Marty Johnson, a published opinion dated September 4, 2009, the Kentucky Court of Appeals affirmed the Floyd Circuit Court’s decision that Johnson, an employee who had been away from work for two years and admittedly could not perform the duties of his old job, had been a victim of retaliation for filing a workers’ compensation claim. The Court of Appeals rejected Colorama’s argument based upon Wymer v JH Properties, Inc., 50 S.W. 3rd 195 (Ky. 2001), that where an employee admits that he cannot do the job he is seeking, he cannot maintain his claim for lost wages. The Court of Appeals stated in its opinion that Colorama’s HR Director had testified in an affidavit in the workers’ comp proceedings that there was no light duty available for Johnson, but had said at the trial in the retaliation case that there might be light duty that he could perform, and thus, maybe he could have come back to work. The Court of Appeals further affirmed the trial court’s award of damages and attorneys’ fees to Johnson, pointing out, among other things, that Johnson’s workers’ comp filing need not have been the sole reason for his alleged termination from employment, but only a substantial and motivating factor; and that the jury’s decision that Johnson had, in fact, been terminated from employment would stand, despite Colorama’s argument that its admitted failure ever to put Johnson back on the schedule after he asked to return to work did not amount to a termination.