New Standard for § 49 Cases

The Benefits Review Board has announced a new standard for resolving Section 49 discrimination cases.  According to the Board, the claimant bears the burden of proving a Section 49 claim by a preponderance of the evidence, as required by Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994).

Section 49 prohibits an employer from discriminating against an employee because the employee filed a compensation claim.  To establish a prima facie case of discrimination, a claimant must show that the employer committed a discriminatory act motivated by discriminatory animus or intent. 

In Geddes v. Benefits Review Board [Geddes I], 735 F.2d 1412 (D.C. Cir. 1984), the District of Columbia Circuit had held that under Section 49, if a claimant demonstrates that the employer committed a discriminatory act motivated by animus, a rebuttable presumption arises that the animus is due to the claimant’s compensation claim.  The court further held that the burden then shifts to the employer to prove that it did not discriminate against the claimant because of the filing of a claim.  The D.C. Circuit also explained that the claimant ultimately has a “light burden” of proof, meaning that he “is not required to prove his case by a preponderance of the evidence."

The Board now determined that this analysis is inappropriate after Greenwich Colleries.  Accordingly, the Board held that:

"1.  A claimant’s initial burden is to make out a prima facie case of discrimination under Section 49.  That is, he must 'produce enough evidence to permit the trier of fact to infer' that the employer committed a discriminatory act motivated by discriminatory animus.  If the claimant makes out a prima facie case, he is entitled to a rebuttable presumption that his employer violated Section 49 of the Act. 
 
"2.  An employer’s burden on rebuttal is one of production only, that is, it must produce substantial evidence that it acted for non-discriminatory reasons.  If the employer produces such substantial evidence, the presumption falls from the case.
 
"3.  The claimant, who bears the ultimate burden of persuasion, then must prove by a preponderance of the evidence that his employer committed a discriminatory act against him motivated by his claim for compensation under the Act, i.e., that the action was taken because of the claimant’s protected activity."

(citations omitted.)

Babick v. Todd Pacific Shipyards Corp., BRB No. 14-0177 (3/30/15)