658 A.2d 1040 (D.C. 1995), 89-AA-1402, St. Clair v. District of Columbia Dept. of Employment Services
|Citation:||658 A.2d 1040|
|Party Name:||Ronald ST. CLAIR, Petitioner/Appellant, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent/Appellee,and U.S. News & World Report, Intervenor.|
|Case Date:||May 31, 1995|
|Court:||Court of Appeals of Columbia District|
Argued Nov. 1, 1991.
Vere O. Plummer, for petitioner/appellant.
Charles L. Reischel, Deputy Corp. Counsel, with whom Herbert O. Reid, Sr., Corp. Counsel at the time the statement was filed in lieu of brief, for respondent/appellee.
Leslie Stout-Tabackman, with whom Paul F. Mickey, Jr., was on the brief, for intervenor.
Before WAGNER, Chief Judge, [*] and FERREN, Associate Judge, and KERN, Senior Judge.
Petitioner, Ronald St. Clair, seeks review of an order of the District of Columbia Department of Employment Services (DOES or the agency) denying his request for reinstatement and back pay based on a claim of retaliatory discharge against his former employer, U.S. News & World Report (employer). In rendering the decision for the agency, its Director rejected a finding of retaliatory
discharge made by a hearing examiner on the grounds that it was contrary to law and not supported by substantial evidence. We find no error in the Director's decision.
Petitioner was a Senior Graphics Technician for U.S. News & World Report before being terminated on December 19, 1986. The employer gave petitioner a notice stating that he was discharged because of his physical inability to perform the job on a full-time basis. Petitioner had injured his left knee on July 17, 1986 while at work, and he was unable to work again until October 8, 1986, when he worked for only two days. He returned to work again on November 3, 1986. Petitioner requested a lighter work schedule, and his employer initially accommodated him. On November 21, 1986, petitioner's physician provided a disability certificate indicating that he should remain on light duty until further notice. Thereafter, on December 9, 1986, petitioner's supervisor informed him orally that he would be terminated as of December 19, 1986 because of his physical inability to work full-time, which the employer confirmed in writing on December 15, 1986. However, petitioner ceased working on December 15th, prior to the termination date, and never reported for work again.
It is undisputed that petitioner was working part-time in a full-time position at the time of discharge. The hearing examiner found that petitioner was temporarily partially disabled from November 3, 1986 until December 15, 1986 and totally disabled from December 15 until December 23, 1986.  Following the termination of his employment in December 1986, petitioner filed a claim of retaliatory discharge under D.C.Code § 36-342 (1993 Repl.).
The hearing examiner for DOES concluded that the employer engaged in retaliatory discharge. The factual predicate for this conclusion, as set forth by the examiner in findings, is as follows:
Since the claimant in the instant case was reporting to work daily and working at the time of his termination within his physical restrictions, he was qualified to perform the duties of his employment and his termination was a retaliatory discharge.
No other factual basis is provided as support for the retaliatory discharge determination. 
Apparently recognizing that this result might be precluded by Lyles v. District of Columbia Dep't of Employment Servs., 572 A.2d 81 (D.C.1990), the examiner sought to distinguish it by pointing out that the employee in Lyles was unable to report to work at all, while petitioner was able to work part-time. The Director disagreed with the examiner's interpretation of the Act and the decision in Lyles, concluding as a matter of law that an employer can terminate an employee who files a claim under the Act without violating it, if the employee is unable to resume a full-time position. See D.C.Code § 36-342; see also Lyles, 572 A.2d at 84-85. The Director ruled alternatively that the examiner's findings were not supported by substantial evidence. Contrary to the examiner, the Director concluded, as a matter of law, that a showing that prior to discharge a claimant could work part-time in a full-time position was insufficient to establish a prima facie case of retaliatory discharge. We discern no error in the Director's decision.
To establish a prima facie case for retaliatory discharge under D.C.Code § 36-342, the employee must prove: (1) that the claimant made or attempted to make a claim for workers' compensation, and (2) that the employer discharged him or her in retaliation for that action. Abramson Associates, Inc.
v. District of Columbia Dep't of Employment Servs., 596 A.2d 549, 552 (D.C.1991) (citing Lyles, supra, 572 A.2d at 83). The employer's motivation for the firing must be the employee's pursuit of his rights under the statute. Lyles, 572 A.2d at 84 (citing Geddes v. Benefits Review Bd., 236 U.S.App.D.C. 381, 384, 735 F.2d 1412, 1415 (1984))....
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