                          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]).
                              -3-                522018

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
