Miller v. J.M. Jones Co.

• Decision Date: 20 February 1992
• Docket Number: No. 4-91-0296,4-91-0296
• Citation: 167 Ill.Dec. 385,587 N.E.2d 654,225 Ill.App.3d 799
• Parties: , 167 Ill.Dec. 385 Phillip MILLER, Plaintiff-Appellant and Cross-Appellee, v. J.M. JONES COMPANY, a Delaware Corporation, Defendant-Appellee and Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 654

587 N.E.2d 654

225 Ill.App.3d 799, 167 Ill.Dec. 385

Phillip MILLER, Plaintiff-Appellant and Cross-Appellee, v. J.M. JONES COMPANY, a Delaware Corporation Defendant-Appellee and Cross-Appellant.

No. 4-91-0296.

Appellate Court of Illinois Fourth District.

Feb. 20, 1992.

Robert I. Auler, Auler Law Offices, P.C., Urbana, for plaintiff-appellant and cross-appellee.

Marc J. Ansel, Erwin, Martinkus, Cole & Ansel, Ltd., Champaign, for defendant-appellee and cross-appellant.

Justice COOK delivered the opinion of the court:

Plaintiff Phillip Miller appeals, in this retaliatory discharge case, from the trial court's entry of a directed verdict at the close of plaintiff's evidence. We affirm.

Plaintiff was employed as a truck driver by J.M. Jones Company. He injured his back while working in 1984, but was able to return to his job. In 1985 he again injured his back and for a period of time was limited to light duty while under the care of his doctor. After another injury in early 1986, plaintiff was placed in a modified work-duty program as a "computer extractor." That position required plaintiff to climb into trucks carrying a 30- to 35-pound port-a-pack, to take information from a truck computer which recorded travel information, and to check the driver's travel reports against the computer information. While so assigned in January 1987 plaintiff reinjured his back climbing out of a truck. Also in January 1987 Jonny Bennett began working for defendant as its loss-prevention safety manager. Bennett testified his primary function was to reduce employee injuries, but acknowledged he had reduced workers' compensation expenses. Bennett changed the modified-duty program, calling it "temporary alternative duty," and prepared written guidelines for review of the status of an injured employee. Company doctors were changed shortly after Bennett's arrival.

Plaintiff had had a workers' compensation claim pending since 1986. In a letter dated November 29, 1986, plaintiff's compensation attorney took the position that plaintiff was permanently disabled from truck driving. In an evidence deposition taken in March 1987 plaintiff's treating physician, Dr. Sam Young, testified that plaintiff was permanently disabled from performing the duties of a truck driver. Dr. Young released plaintiff for light-duty work, but plaintiff did not return to work, apparently because the parties were negotiating the compensation claim. During negotiations the parties' attorneys discussed vocational rehabilitation and the possibility that plaintiff would resign. In his March 23, 1987, letter to Bennett enclosing Dr. Young's light-duty slip, plaintiff stated, "[s]hould however the negotiation process fail, it appears that J.M. Jones will have to provide a permanent light duty job."

On May 11, 1987, a settlement contract resolving all issues, including rehabilitation, was signed by the parties and approved by the arbitrator. The contract was set out on a form prepared by the Industrial Commission. Where the form asked for information on the injured employee and his current employment, the following answer was filled in: "Employee given modified duty within his restrictions. Will seek new work with a different employer." Plaintiff refused to sign the contract with the quoted language included, and the language was accordingly marked out.

Plaintiff testified he contacted Jonny Bennett about mid-June and asked to take vacation time, but Bennett asked him if he would be resigning. Bennett testified plaintiff asked to collect his accrued vacation benefits, and Bennett told him that according to company policy he could not collect accrued benefits until he completed his resignation papers. On June 18, 1987, defendant's personnel manager, Ken Waltsgott, sent plaintiff a letter of termination referring to "medical restrictions * * * provided by Dr. Young that make it impossible for you to be employed as a truck driver at the J.M. Jones Company." Waltsgott testified plaintiff had told him that plaintiff could never see returning to the truck driver position, that Waltsgott knew plaintiff was not interested in clerical positions, and was not happy with the computer extractor position. Waltsgott thought plaintiff would have liked a dispatcher position, but none was available. Waltsgott testified plaintiff's filing of his workers' compensation claim was not a factor in his decision to discharge plaintiff.

Plaintiff was on vacation and did not receive the termination letter until July 10. In plaintiff's response to the termination letter, he said that he had made an appointment with the company doctor, Dr. Brunner, to see if the doctor would release him "back to driving," and that Dr. Brunner's determination would be the deciding factor in whether he returned. Shortly thereafter Waltsgott received a return-to-work slip signed by Dr. Brunner which indicated plaintiff was released to return to truck driving. Plaintiff had not told Dr. Brunner he had been terminated; he told the doctor he would be terminated if he did not get a release for work, that he felt he could go back to work, and wanted to go back to work. About this time plaintiff saw defendant's classified ad describing a part-time clerical position. Plaintiff testified he would have been interested in that type of job, but he did not contact defendant about it.

Defendant had four other employees who were injured while in a truck driving position. Each had filed a workers' compensation claim and was eventually released by his doctor with permanent restrictions which precluded a return to truck driving, and each had eventually been placed in a permanent position which met his abilities and medical restrictions.

Plaintiff filed a retaliatory discharge complaint alleging he had been terminated because of his exercise of rights under the Workers' Compensation Act (Act) (Ill.Rev.Stat.1989, ch. 48, par. 138.1 et seq.). After the close of plaintiff's evidence the trial court granted defendant's motion for a directed verdict, finding no evidence from which the jury could conclude that the reason given by Waltsgott for discharge was merely a pretext, and no evidence that the true motive for discharge was retaliation for plaintiff's exercise of his rights or receipt of benefits under the Act. During the trial plaintiff had made an offer of proof that while he was working as a computer extractor the company's safety director, Les Reinert, told him the company "was trying to break him" by giving him that position, which required him to "inform upon" his fellow drivers and their inaccurate mileage claims. The trial court ruled the evidence admissible, but plaintiff chose not to introduce it. After the directed verdict plaintiff's motion to reopen and submit this evidence was granted, but the court nevertheless granted the directed verdict. Plaintiff appeals, arguing that he established a prima facie case under Hugo v. Tomaszewski (1987), 155 Ill.App.3d 906, 108 Ill.Dec. 562, 508 N.E.2d 1139, and that the jury could reasonably have inferred from the evidence that he was terminated in retaliation for his exercise of rights under the Act.

The Act provides:

"It shall be unlawful for any employer * * * to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his or her exercise of the rights or remedies granted to him or her by this Act.

It shall be unlawful for any employer * * * to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act." (Ill.Rev.Stat.1989, ch. 48, par. 138.4(h).)

To establish a claim of retaliatory discharge, a plaintiff must establish: (1) he was an employee before the injury; (2) he exercised a right granted by the Act; and (3) he was discharged and the discharge was causally related to his exercise of rights. (Gonzalez v. Prestress Engineering Corp. (1990), 194 Ill.App.3d 819, 823, 141 Ill.Dec. 606, 610, 551 N.E.2d 793, 796.) The causality element will not be satisfied where the basis of the discharge is valid and nonpretextual. Gonzalez, 194 Ill.App.3d at 824, 141 Ill.Dec. at 611, 551 N.E.2d at 797.

The trial court properly ruled the testimony of the safety director, Reinert, was admissible. An agent may make an admission regarding a matter within the scope of his authority, while the employment relationship exists. (Oakleaf v. Oakleaf & Associates, Inc. (1988), 173 Ill.App.3d 637, 651-52, 123 Ill.Dec. 288, 297, 527 N.E.2d 926, 935; Cornell v. Langland (1982), 109 Ill.App.3d 472, 476, 65 Ill.Dec. 130, 133, 440 N.E.2d 985, 988.) Agents are rarely given specific authority to make damaging statements, but the present trend is to admit the statement if it concerns matters within the scope of the agent's employment. (M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 802.9, at 609 (5th ed. 1990).) Knowledge why an employee was assigned a certain position could be a matter within the scope of a safety director's employment.

The cases which plaintiff cites for the proposition that he established a prima facie case by showing a short time period between his exercise of rights and his discharge, Hugo (155 Ill.App.3d 906, 108 Ill.Dec. 562, 508 N.E.2d 1139) and Bragado v. Cherry Electrical Products Corp. (1989), 191 Ill.App.3d 136, 138 Ill.Dec. 476, 547 N.E.2d 643, utilize the three-tier standard of proof of the Civil Rights Act cases. (See McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817; see also Burnham City Hospital v. Human Rights Comm'n (1984), 126 Ill.App.3d 999, 1002, 81 Ill.Dec. 764, 766, 467 N.E.2d 635, 637.) Under the three-tier standard of proof plaintiff...