§ 2365 Retaliation Requires an Affirmative Attempt to Claim Workers’ Compensation—Mere Injury Notice Is Not Enough

Precedents Cited

1) The summary-judgment lens: Paul v. Deloitte & Touche, LLP; Berns v. Doan; Williams v. Geier; Arnold v. Soc'y for Sav. Bancorp, Inc.

The Court began by restating de novo review of summary judgment, quoting Paul v. Deloitte & Touche, LLP and Berns v. Doan for the requirement that there be “no genuine material issue of fact” and that the movant be “entitled to judgment as a matter of law.” It further relied on Williams v. Geier (citing Arnold v. Soc'y for Sav. Bancorp, Inc.) to emphasize that appellate courts are institutionally competent to identify factual disputes and must view the record and inferences in the non-movant’s favor.

These authorities framed the dispositive issue as legal rather than factual: even crediting Redic’s version of events, did his conduct qualify as an “attempt to claim” under § 2365?

2) Importing a retaliation framework into § 2365: Santora v. Red Clay Consol. Sch. Dist. and Title VII comparators

Delaware appellate decisions had not supplied a bespoke test for § 2365 retaliation. The Court therefore followed the approach taken in Santora v. Red Clay Consol. Sch. Dist., where the U.S. District Court for the District of Delaware—“[i]n the absence of any Delaware case law providing a standard”— applied a Title VII retaliation framework by agreement of the parties.

Santora held that a plaintiff must show: (1) the plaintiff exercised rights under the Workers’ Compensation Act; (2) an adverse employment action; and (3) causation. The Delaware Supreme Court expressly adopted that test for this appeal, noting it has been followed in later cases including Weller v. Morris James and Infante v. Horizon Servs., Inc.

In footnoted discussion of Title VII standards, the Opinion referenced the Third Circuit line of cases including Moore v. City of Phila. (quoting Nelson v. Upsala Coll.) to articulate the analogous protected-activity/adverse-action/causation structure that Santora imported.

Importantly, the Court used Santora as the framework but recognized that it left open the crucial definitional problem: what counts as “exercis[ing] rights” or “attempt[ing] to claim” under § 2365?

3) Defining “attempt to claim” via affirmative conduct: Gilliss v. Dentsply, LLC

The Opinion identified Gilliss v. Dentsply, LLC as the primary case providing “significant insight” into what constitutes a “claim” for § 2365 purposes. In Gilliss, a nurse filled out and submitted a workers’ compensation claim on the employee’s behalf, and the employee did not allege she requested it. The federal court dismissed the § 2365 retaliation claim because, “without any affirmative act on her part to exercise her right to request benefits,” she could not satisfy the first element of the prima facie case.

The Delaware Supreme Court treated Gilliss as persuasive authority for a limiting principle: § 2365 protection is triggered by a worker’s affirmative exercise (or attempt to exercise) the right to benefits—not merely by events occurring at work, employer knowledge, or third-party initiation of a claim.

4) Confirming the meaning of “claim” as a demand for relief: Zurich Am. Ins. Co. v. Syngenta Crop Prot. LLC and Lamberton v. Travelers Indemnity Company

To reinforce the “affirmative act/demand” concept, the Court drew on its recent insurance-coverage decision Zurich Am. Ins. Co. v. Syngenta Crop Prot. LLC, which examined whether a letter threatening future litigation could be a “claim for damages” under a claims-made policy. In that analysis, the Court quoted Lamberton v. Travelers Indemnity Company for the broad, common-sense conception of a “claim” as an assertion of a right, a demand, or a request for payment/benefits.

The Court’s move is doctrinally significant: it used a cross-context definition of “claim” to supply content for § 2365’s phrase “claimed or attempted to claim.” Read together, Gilliss and Zurich supported the Court’s bottom line that “a claim, in the context of a § 2365 action, is an affirmative act to assert one’s right to workers’ compensation benefits.”

5) Other cited § 2365 decisions: Blakeman v. Freedom Rides, Inc. and Blades v. Mosaic of Del.

The Court observed that many § 2365 cases involve formal claims or substantial steps toward compensation, or do not squarely address the “attempt to claim” boundary. It cited Blakeman v. Freedom Rides, Inc. as an example in the landscape.

In a detailed footnote, it discussed Blades v. Mosaic of Del., where the plaintiff requested a light-duty assignment after a work-related injury but did not file a formal claim; the court “assume[d], without deciding” that the first prong was met at the pleading stage. The Delaware Supreme Court treated Blades as merely illustrative and not decisive.

Legal Reasoning

1. The Court anchored § 2365 in its text. Section 2365 prohibits discharge/retaliation “because such employee has claimed or attempted to claim workers’ compensation benefits.” Because Redic filed his petition more than four months after termination, he could only proceed if his pre-termination actions were an “attempt to claim.”
2. The Court adopted the prima facie retaliation structure but tightened element (1). Following Santora v. Red Clay Consol. Sch. Dist., the Court required proof that Redic “exercised rights under the Workers’ Compensation Act.” The entire dispute focused on what qualifies as “exercise” or “attempt.”
3. The Court rejected a “mere notice” theory. Redic argued that reporting a mental-health injury to a supervisor was protected activity under § 2365. The Court disagreed: informing an employer of an injury (particularly one “not obviously compensable”) is not itself an “attempt to claim” benefits.
4. The Court defined “attempt to claim” as an affirmative act asserting entitlement to benefits. Using Gilliss v. Dentsply, LLC as the key workers’ compensation analogue and Zurich Am. Ins. Co. v. Syngenta Crop Prot. LLC / Lamberton v. Travelers Indemnity Company as confirmatory definitional support, the Court held that § 2365 requires some “affirmative exercise” or “significant steps” toward obtaining benefits before termination.
5. Failure on element (1) collapsed causation. Having found no protected activity under § 2365 prior to discharge, the Court concluded causation necessarily failed as well: no “exercise of rights” existed to be causally linked to the termination decision.

Impact

• Clarified threshold for § 2365 protection. The decision establishes (as Delaware Supreme Court authority) that § 2365 retaliation liability requires an employee’s affirmative assertion of workers’ compensation rights. Internal complaints, generalized safety concerns, or disclosure of symptoms—without a demand/request for benefits or comparable “significant steps”—do not qualify.
• Constrains retaliation claims premised on employer awareness alone. Plaintiffs cannot rely solely on evidence that an employer knew of an injury (or distress) to satisfy the protected-activity element; they must show an attempt to obtain statutory benefits.
• Encourages earlier, clearer employee action when benefits are sought. Employees who believe they have a compensable injury—and who wish to preserve § 2365 retaliation protections—are incentivized to take steps that communicate a benefits-based claim (e.g., requesting workers’ compensation benefits or initiating the statutory process) rather than relying on informal disclosures.
• Provides employers a clearer compliance boundary. While employers still must not retaliate when an employee seeks benefits, they are not, by virtue of this holding, deemed to be retaliating under § 2365 merely because an employee mentioned stress, anxiety, or sought counseling resources.
• Doctrinal cross-pollination: “claim” as a demand across contexts. By borrowing from Zurich and Lamberton, the Court signaled that Delaware will interpret “claim” language consistently as involving an assertion/demand for relief—potentially influencing other statutory settings where “claim” is undefined.