Court: Construction company properly fired worker after injury

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A state appeals court has found that Stevens Construction does not have to pay penalties for firing an employee after his recovery from an on-the-job injury.

Thursday’s decision stems from a case involving Kevin Roberts, whom Stevens hired in May 2012 to be a project superintendent overseeing work on the Landmark, a student housing high-rise in Ann Arbor, Mich. Two and a half months into the project, Roberts injured his knee on the job and was told by a doctor to stop working. He returned to Wisconsin, where he received medical treatment and worker’s compensation benefits.

By August of the same year, Roberts, who had about 30 years of experience as a superintendent and had never been fired before, was deemed ready to return to work. That’s when officials at Madison-based Stevens told him that was being fired because he had not performed as well as expected.

Roberts filed a complaint with the state Department of Workforce Development, alleging that Stevens had been unreasonable in its refusal to rehire him. Under state law, an employer can be made to pay up to a year’s worth of wages if it fires an employee over a workplace injury or unreasonably refuses to rehire someone who has recovered from such an injury.

An administrative-law judge ruled in 2014 that Stevens should not have to pay a penalty over Roberts’ firing. The judge found that Roberts had lost his job both because of his performance and because Stevens had no job for him when he was ready to return to work.

According to testimony presented to the judge, Stevens officials said the company’s Landmark project in Ann Arbor was then coming to an end and employees were being taken off it. There were six other projects in progress at the time but none of them had a position for Roberts. The officials noted that a separate superintendent who had been working on the Ann Arbor project was forced to take paid time off while waiting for another position to open.

Roberts is now on his third appeal in the case. His previous two — before the state’s Labor and Industry Review Commission and a Dane County Circuit Court judge — resulted in defeat.

In taking his fight to the state Court of Appeals, Roberts argued that Stevens had not adequately shown that it had no work for him. He also argued that the company had not provided sufficient evidence showing that other workers had been laid off or not rehired.

Once again, the court was not persuaded. The court noted in part that there had been no evidence showing that Roberts was able to perform non-supervisory work. Follow @erikastrebel