Bryce v. Johnson & Johnson

• Decision Date: 06 June 1983
• Docket Number: No. 82-0379,82-0379
• Citation: 115 Ill.App.3d 913,71 Ill.Dec. 356,450 N.E.2d 1235
• Parties: , 71 Ill.Dec. 356 James C. BRYCE, Plaintiff-Appellee, v. JOHNSON & JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1235

450 N.E.2d 1235

115 Ill.App.3d 913, 71 Ill.Dec. 356

James C. BRYCE, Plaintiff-Appellee, v. JOHNSON & JOHNSON, Defendant-Appellant.

No. 82-0379.

Appellate Court of Illinois First District, First Division.

June 6, 1983.

Rehearing Denied July 18, 1983.

Seyfarth, Shaw, Fairweather & Geraldson, Chicago (Ronald L. Lipinski and Cynthia G. Swiger, Chicago, of counsel), for defendant-appellant.

Carey & Scheuneman, Ltd., Chicago (Peter B. Carey, Regina K. McCabe and John J. O'Toole, Chicago, of counsel), for plaintiff-appellee.

GOLDBERG, Justice:

This appeal involves an action for retaliatory discharge brought by James C. Bryce, an employee (plaintiff), against Johnson & Johnson, a corporation, his employer (defendant). After trial by the court, judgment was entered in favor of plaintiff for $350,000. Defendant has appealed.

Plaintiff was employed by defendant since 1969. The mutual rights and obligations of the parties are covered by a comprehensive collective bargaining agreement between defendant and Textile Workers Union of America (union). The pertinent facts are not easily stated. There are several conflicts in the evidence. Also both sides have departed from the applicable rule requiring the facts to be stated "accurately and fairly without argument or comment." 87 Ill.2d Rules 341(e)(6) and 341(f).

Defendant has a plant in Chicago which manufactures ointments and gauze products used for dressings. Part of this work is done in a sterile environment. Commencing about November of 1969, plaintiff worked for defendant as a material handler for about eight months. He left for a short time and returned to work again during 1970. Plaintiff worked in the so-called asceptic room and in two other associated rooms. Plaintiff was then in good health. His duties in the asceptic room required him to lift certain items including bottles and bottle cases which varied in weight and were often as heavy as approximately 40 to 50 pounds. No heavier weights were lifted by him without the aid of a machine or another person. Racks of bottles were placed on trays which were put on a movable truck and pushed into a sterilizer. Plaintiff also worked in the adaptic room which required him to lift trays weighing 52 pounds up from the floor to a refrigerator shelf about as high as his head.

On January 6, 1975, while working in the asceptic room, plaintiff sustained a back injury. Plaintiff's foot slipped as he was loading bottles onto a tray for washing. This mishap occurred "out of and in the course of" plaintiff's employment. Ill.Rev.Stat.1981, ch. 48, par. 138.2.

Dr. Evelyn Adams, employed by defendant, recommended plaintiff receive medical treatment from Dr. John F. Flynn, Jr. During February of 1975, plaintiff was operated on by Dr. Flynn for partial removal of one of the discs between the vertebrae. This surgery is referred to as a "partial laminectomy." Dr. Flynn did not discharge plaintiff from his care until January 19, 1976, approximately one year after the mishap.

On March 20, 1975, plaintiff filed an application for adjustment of claim with the Illinois Industrial Commission. Plaintiff received temporary total compensation and defendant assumed and paid all of the medical expenses as well as additional compensation. The arbitrator also awarded plaintiff compensation of $83.20 per week for 150 weeks.

Plaintiff testified that during late November 1975, he spoke to Joseph Beemster who managed safety and security for defendant. Beemster told plaintiff he "didn't need a lawyer, that Johnson & Johnson [defendant] would take care of me." Beemster denied this conversation. He testified he told plaintiff that he should get back to work as soon as he could. Beemster testified he had a conversation with plaintiff about August of 1975. Plaintiff said he was going "to screw" Dr. Adams, the company and the union. Beemster told plaintiff that he (Beemster) "was very upset."

Beemster also testified to a conversation with plaintiff near the end of 1975. At that time plaintiff told him he wanted to come back and do his job. Plaintiff picked up some heavy boxes to demonstrate. Beemster advised plaintiff to put the boxes down. He said, "Don't get hurt." Beemster testified that these were the only conversations he had with plaintiff. He testified he never at any time told plaintiff not to file a workmen's compensation claim and he never did anything to discourage plaintiff from filing such a claim.

During the summer of 1975, plaintiff visited defendant's plant. John Devine, department manager of defendant, asked plaintiff when he would return to work. Plaintiff stated this was up to his doctor. Plaintiff testified Devine told him "he was not going to hold the job open too long" for plaintiff.

During plaintiff's extended absence the question of posting plaintiff's old position came up. The union president requested that the posting wait because plaintiff was on a workmen's compensation leave. Defendant's representative agreed to wait "2 weeks or so" before posting.

After a wait, the defendant did post the job. In late 1975, plaintiff's position was filled after posting and bidding in accordance with the collective bargaining agreement. Both of the briefs comment and argue upon this situation. On October 29, 1975, plaintiff's union filed a grievance based upon posting of plaintiff's job. However, the grievance was denied by defendant. The union officials suggested to defendant that plaintiff's real concern was to work on the first shift. The grievance was apparently then dropped. When plaintiff returned to work in January of 1976, he took a new job as janitor but he retained all of his seniority rights including the right to bid on any posted job.

Upon plaintiff's return to work on January 19, 1976, he was assigned to the midnight shift. This new assignment reduced his earnings approximately 50%. He had no overtime or incentive pay. His duties included sweeping, mopping and cleaning up. Plaintiff testified he was directed to perform work which exceeded the lifting requirements of his previous job. However, there is testimony to the contrary that the normal duties of the janitor job did not require such lifting. There is testimony that this new job was worked out by discussion between the union and management representatives as temporary employment for plaintiff to protect plaintiff from possible injury.

By January of 1976, plaintiff was free from pain and he resumed his ordinary personal activities. He had a slight limp and he was still wearing a back brace. Dr. Flynn directed him to wear the brace for 30 days after he resumed work. When plaintiff returned to work, he gave Dr. Adams a note from Dr. Flynn. Dr. Flynn also wrote directly to Dr. Adams. Dr. Flynn stated that plaintiff was able to return to work but the doctor wished to continue to see him every four to six months. Dr. Flynn also wrote, concerning plaintiff, that he should have two or three rest periods a day and "he is to be limited with regard to lifting no more than 25 pounds."

On January 28, 1976, plaintiff wrote to the chairman of the board of defendant. This was a lengthy communication in which plaintiff stated that when he returned to work he was given "a much harder job" on a late shift and with a reduction in pay. In this letter, plaintiff also stated that he was ordered by one of his superiors to give unsterilized bottles to machine operators in situations which required sterility. In responding to this letter, defendant's director of personnel wrote plaintiff and told him that this charge had been "thoroughly investigated" and that since December of 1974 the defendant had strictly complied with all such regulations. On March 23, 1976, the director of personnel prepared a memorandum to the effect that plaintiff had been informed that proper procedures were being followed in the plant and that defendant company "could not tolerate any further conduct by him which in any way defamed the company or its products and further conduct of this nature by plaintiff could result in his discharge."

As a result of plaintiff's letter, the manager of labor relations at defendant's plant made an investigation and a written report. This lengthy communication pointed out that restoring plaintiff to his former job would increase the risk of injury. The communication also recommended that plaintiff "be separated upon incurrence of the next Medical Leave of Absence or extended absence due to illness or injury."

There is a quantity of testimony in the record, all conflicting, as to whether the duties imposed upon plaintiff by his new job as a janitor were harder than those of his former job in the asceptic room. Plaintiff testified he was required to move items referred to as pallets occasionally in connection with his duties. However, he used a hydraulic lift to move these items for sweeping purposes. Plaintiff mentioned the need to move steel cores weighing 130 pounds. However, he testified that these cores were moved with the help of an electric hoist. We do not regard this question as being the decisive issue in the case. In fact, as will be shown, plaintiff worked at his new post less than three months until his next injury.

The union president testified plaintiff told him privately there was no problem with the company products but he was only making these charges in an effort to get his old job back. This alleged conversation occurred on March 19, 1976, some two months after plaintiff started to work at his new post. Plaintiff also testified he was told at a meeting with defendant's representatives that he was not going to get his old job back. Plaintiff also testified he was threatened then with termination of his employment. In any event, the meeting terminated without action by either side.

After this meeting, and on March 22, 1976, plaintiff filed a charge against defendant before the National Labor Relations Board. This charge claimed...