Employers liability. Video surveillance is not retaliation.

 Hall v. State, 2012 VT 43 (Skoglund, J.)

Plaintiff, a longtime employee of the State of Vermont Agency of Transportation (AOT), sued his employer alleging discrimination on the basis of having filed a workers’ compensation claim.  The jury found that the State had retaliated against him as alleged.  On appeal, the State argues that evidence of a video surveillance connected with a second workers’ compensation claim was insufficient as a matter of law to support his retaliation claim and the resulting damages award. We agree with the State and vacate the award.

To make out a prima facie case of retaliation for filing a worker’s compensation claim, a plaintiff must show, among other things, that “he suffered adverse employment decisions, and . . . there was a causal connection between the protected/ activity and the adverse employment decision[s].”  Murray v. St. Michael’s Coll., 164 Vt. 205, 210, 667 A.2d 294, 299 (1995).  Video surveillance can be expected in response to a claim, and indeed the State has the right and responsibility to use such techniques to prevent /fraudulent claims.  If any video surveillance in connection with a workers’ compensation claim could form the sole basis for a retaliation claim, it could well have the effect of pressuring the State into abandoning or unnecessarily restricting one of its legitimate tools for rooting out fraud in the filing of workers’ compensation claims.  In the trial  court’s view, “[t]he jury could reasonably have concluded that the only reason AOT conducted surveillance of Hall was in retaliation for his filing a worker’s compensation claim, since that was obviously the reason the video was taken.”  This is not enough.  


The videotaping of Hall in connection with his second workers’ compensation claim, cannot, in and of itself, support Hall’s retaliation claim. We do not necessarily disagree with Hall’s contention that video surveillance can be submitted as evidence of a larger pattern of retaliation. But in this case, there was no larger pattern, and video surveillance itself  is not an adverse employment decision.