State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522018 

________________________________

In the Matter of the Claim of

ANTONETA FETAHAJ,

Appellant,

v

STARBUCKS CORPORATION, MEMORANDUM AND ORDER

Respondent.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: October 20, 2016

Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.

__________

Geoffrey Schotter, New York City, for appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, PC, New York City

(Theresa Donahue Egler of counsel), for Starbucks Corporation,

respondent.

__________

Lynch, J.

Appeal from a decision of the Workers' Compensation Board,

filed March 17, 2015, which ruled that claimant's employment was

not terminated in violation of Workers' Compensation Law § 120.

In January 2013, claimant and a coworker were requested by

their supervisor to take a portable bin of garbage down to the

basement of the building in which they worked and empty it into a

receptacle. According to incident reports submitted by both

claimant and the coworker, claimant was injured when the coworker

moved the bin without realizing that claimant was leaning against
-2- 522018 

it, causing claimant to fall. Surveillance video of the incident

revealed, however, that claimant's fall was actually caused by

the coworker grabbing claimant by her legs and lifting them up as

she leaned against the bin, causing the bin to move and claimant

to fall and hit her head. When confronted with the discrepancy,

the coworker admitted that he had provided false information in

his report regarding how the injury had occurred. Claimant,

however, stated that she could not recall how the injury

occurred. Claimant's employment, as well as that of the

coworker, was subsequently terminated for providing false

information regarding the incident. 

Claimant filed a claim alleging a retaliatory discharge in

violation of Workers' Compensation Law § 120. Following a

hearing, a Workers' Compensation Law Judge denied the claim,

finding that claimant was discharged for providing false

information to the employer and not in retaliation for filing a

claim for workers' compensation benefits. The Workers'

Compensation Board affirmed this determination and claimant now

appeals.

We affirm. Pursuant to Workers' Compensation Law § 120,

"[i]t shall be unlawful for any employer or his or her duly

authorized agent to discharge . . . or in any other manner

discriminate against an employee as to his or her employment

because such employee has claimed or attempted to claim

compensation from such employer."1 "The burden of proving a

retaliatory discharge in violation of the statute lies with the

claimant" (Matter of Lawrik v Superior Confections, 300 AD2d 777,

778 [2002] [citations omitted]; see Matter of Gibson v Carrier

Corp., 307 AD2d 616, 618 [2003]), who must demonstrate "a causal

1 Although claimant was terminated prior to her filing a

claim for workers' compensation benefits for the alleged injuries

that resulted from the incident in question, this does not

preclude her claim regarding the violation of Workers'

Compensation Law § 120, inasmuch as the employer admitted that it

was on notice of claimant's intention to file a claim for

benefits based upon her submission of the incident report (see

Matter of Gillen v US Air, 260 AD2d 853, 854 [1999]).
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nexus between the [claimant's] activities in obtaining

compensation and the employer's conduct against [him or her]"

Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128, 134

[1984]; see Matter of Little v Gaines Elec. Contr., Inc., 36 AD3d

1056, 1057 [2007]). Finally, "[w]hile Workers' Compensation Law

§ 120 was enacted to protect employees against employer

retaliation, it was not intended to shield employees from

discharge due to their own misconduct" (Matter of Vanelli v New

Venture Process Gear, 304 AD2d 922, 923 [2003]). 

The employer's representatives testified that claimant was

terminated for providing false information in the incident

report. The employee handbook that claimant acknowledged

receiving included the warning that serious misconduct, including

"falsification or misrepresentation of any company document" may

warrant "immediate termination from employment." The handbook

also requires all employees to report any workplace injuries to

their manager and complete an employer-provided incident report

form. The record contains a signed written statement from the

coworker admitting that the version of the accident contained in

his report was false and that claimant had asked him to write

that version so that it was consistent with her report. Although

claimant testified that when she completed the incident report

she could not remember what had caused her to fall and denied

asking the coworker to falsify his report, "[t]he Board is vested

with the discretion to weigh conflicting evidence and evaluate

the credibility of witnesses, and its resolution of such matters

must be accorded great deference" (Matter of Donovan v BOCES

Rockland County, 63 AD3d 1310, 1312 [2009] [internal quotation

marks and citations omitted]; accord Matter of Friedman v New

York City Dept. of Transp., 69 AD3d 1020, 1023 [2010]). This

proof, coupled with the surveillance video, supports the Board's

determination that claimant was terminated for misrepresenting

the circumstances that caused her accident. As such, we conclude

that the Board's determination that claimant was not terminated

in violation of Workers' Compensation Law § 120 is supported by

substantial evidence (see Matter of Torrance v Loretto Rest

Nursing Home, 61 AD3d 1124, 1125 [2009]). Claimant's remaining

claims have been considered and found to be without merit.
-4- 522018 

McCarthy, J.P., Devine, Mulvey and Aarons, JJ., concur. 

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court