Gomez v. The Finishing Co., Inc.

• Decision Date: 18 December 2006
• Docket Number: No. 1-05-3386.,1-05-3386.
• Citation: 308 Ill.Dec. 124,861 N.E.2d 189
• Parties: Cutberto GOMEZ, Plaintiff-Appellee, v. THE FINISHING COMPANY, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

861 N.E.2d 189

308 Ill.Dec. 124

Cutberto GOMEZ, Plaintiff-Appellee, v. THE FINISHING COMPANY, INC., Defendant-Appellant.

No. 1-05-3386.

Appellate Court of Illinois, First District, First Division.

December 18, 2006.

Ronald J. Broida and Jeffrey A. Tullis, of Broida and Tullis, Ltd., Naperville, for Appellant.

Glenn C. Ronaldson and Stacey I. Hnatiuk, of Ronaldson and Kuchler, LLC, Chicago, for Appellee.

Justice CAHILL delivered the opinion of the court:

A jury returned a verdict in favor of plaintiff Cutberto Gomez, who had filed a complaint for retaliatory discharge against defendant The Finishing Company, Inc., his former employer. The jury answered "yes" to the special interrogatory: "Was [p]laintiff terminated from his employment in retaliation for calling the Occupational Health and Safety Administration [(OSHA)]?" The jury awarded plaintiff compensatory and punitive damages of $111,601.74. Defendant filed and the trial court denied posttrial motions for: (1) a judgment notwithstanding the verdict (judgment n.o.v.), (2) a directed verdict and (3) remittitur. Defendant appeals from those rulings. It also raises the collateral issues of whether the verdict was against the manifest weight of the evidence; whether plaintiff established prima facie evidence of retaliatory discharge and specifically, whether plaintiff provided evidence of pretext; whether defendant was entitled to a directed verdict due to plaintiff's failure to provide sufficient evidence of pretext; whether the court committed reversible error in ruling on certain motions in limine; and whether the court committed reversible error in denying defendant's posttrial motion requesting, inter alia, a new trial and remittitur. We affirm.

Plaintiff began working for defendant in 1990. He received promotions and raises during his tenure. At the time of his discharge he was the first-shift supervisor in the powder coating division plant, where wire racks were treated with spray paint finishes.

On March 3, 2000, without informing his employer or coworkers, plaintiff called OSHA to complain about conditions in the plant. Defendant heard from OSHA the next day, March 4, 2000. Plaintiff was discharged on April 11, 2000, by Brad Watt, president of the powder coating division. The letter of termination read:

"We, the management of The Finishing Company, do not believe your leadership of the employees on your shift has been adequate to properly supervise. Unfortunately, you have not developed to a level we expected and do not set a good example for the employees on your shift. We feel it is not in the Company's best interest to keep your employ."

Two days later, April 13, 2000, Watt sent a memo to Billy Carlson, the president of The Finishing Company:

"Per your instruction and recommendation to adopt cost containment measures in the Powder Coating Division, I elected to reduce our supervisory staff. * * *

The only means I could see to reduce costs was to permanently lay off the first shift supervisor, Cutberto Gomez, and give the bulk of his responsibilities to the General Foreman * * *. * * *

I have no intention of reinstating this position in the future, as I believe we will be able to perform at optimum levels without it."

Plaintiff filed a complaint on January 25, 2002, alleging retaliatory discharge. He sought compensatory and punitive damages and the costs of the lawsuit. The matter proceeded to a jury trial. During voir dire, the trial court asked the venire, "[I]s there anyone here who has * * * an objection to rewarding money damages under any circumstances?" The judge also said, "[s]ometimes in the law there's a concept called punitive damages." He described such damages as being "in the nature of punishment of a defendant." He asked if any prospective jurors opposed punitive damages to the extent that they could not award them under any circumstances. None did.

The trial court granted a motion in limine, barring defendant from presenting evidence of its cost-cutting measures in effect at the time of the trial in 2005. The trial court ruled that recent cost-cutting measures were irrelevant to conditions in 2000, the year of plaintiff's discharge, and could be prejudicial.

The parties in their briefs refer to another motion in limine made by plaintiff to bar evidence that he received unemployment compensation benefits. Neither party gave us an accurate page citation in the record for this motion or the trial court's ruling. The lack of support in the record precludes our review of defendant's claim that the trial court erred in barring the evidence of plaintiff's unemployment compensation.

Plaintiff testified on his own behalf at trial. He said that from 1997 to 2000 he made general complaints to his supervisor and the plant safety manager about high levels of heat, smoke and paint dust in the work environment. Plaintiff said masks provided by the safety manager did not prevent paint dust from entering the body. He said that when he cleaned up at home after work, he would find residue in his nose the color of the paint he had used that day—blue, white or green. "Sometimes it's scary because it's a lot of paint inside your body," he testified. Plaintiff said smoke, powder paint and dust were in the lunch area and contaminated the food.

On March 3, 2000, plaintiff made a telephone call to OSHA, after learning of the existence of OSHA from his wife. He told the person who answered the telephone at OSHA of his complaints about the plant and asked to remain anonymous because he did not know what would happen if defendant learned he had called. The next day, he saw Arturo Bahena, the plant manager, talking to Watt. Plaintiff said Bahena was very angry when he came out of the meeting. Bahena showed plaintiff a letter from OSHA and asked him who had called OSHA. When plaintiff said he did not know, Bahena asked him to find out. Plaintiff described the atmosphere in the plant as "tense."

Plaintiff then testified that soon after the receipt of the OSHA letter, Connie Vrenios, the plant safety manager, called plaintiff into her office and gave him a safety manual. He refused to sign a paper, stating he had read the manual, because the conditions in the plant were usually unlike those described in the manual. Plaintiff said when inspectors came to investigate the complaint made to OSHA, the rate of production had been reduced, so there were lower temperatures and fewer paint guns in operation. About one hour after the inspector left, plaintiff was told to start running the line at the usual rate. Photographs of the inside of the plant taken by plaintiff in March 2000 were entered into evidence.

Plaintiff testified that on April 11, 2000, Bahena told him that Watt wanted to talk with him. Watt gave plaintiff the termination letter. The meeting lasted 10 to 15 minutes. Plaintiff said he was not told that he was being fired as a cost-cutting measure. He said he had difficulty finding work after his discharge.

Plaintiff admitted on cross-examination that he was unaware of the company's financial condition. He said Watt apologized for discharging him and offered to give him references for another job. Nothing was said about OSHA. Defense counsel asked plaintiff questions about his salary at the company and at his job after his discharge, but not about his unemployment compensation. Plaintiff said he did not tell the safety manager or the plant manager that he had called OSHA.

Vrenios was called by plaintiff as an adverse witness. She testified that she believed plaintiff was a good employee and she continued to hold that opinion through the date of his discharge. She said plaintiff had expressed complaints and concerns about environmental conditions in the plant and he appeared to be frustrated with defendant's response or lack of response. She testified on cross-examination that she did not know that plaintiff had called OSHA and he was not discharged because of the call to OSHA.

Brad Watt was called by plaintiff as an adverse witness. He said that until he received the letter from OSHA, he did not know that ventilation, paint dust and smoke were problems in the plant. He said he was "inconvenienced" by the letter from OSHA and he "wondered" who had called OSHA. He said he had once considered plaintiff a good employee but he had noticed a decline in plaintiff's performance in the 12- to 18-month period before his discharge. Watt admitted that plaintiff received a raise in 1999. Watt had no documentation of the alleged decline in plaintiff's performance. Watt said he did not make the decision to discharge plaintiff until a few days before he did so. Watt said the company needed to fire one of the plant's four supervisors as a cost-containment measure and he chose plaintiff because of plaintiff's declining performance. Watt said he found plaintiff's supervision to be deficient because plaintiff did not send his supervisees to clean the bathrooms and lunchrooms, nor was plaintiff very enthusiastic about doing his job. Watt said he did not learn until plaintiff's lawsuit was filed that it was plaintiff who had called OSHA.

Arturo Bahena was called by plaintiff as an adverse witness. Bahena said plaintiff was a good employee and he had no problems with him. Bahena said he heard rumors in 1999 and 2000 that employees were complaining about paint accumulating in the production area. He denied that he asked plaintiff to find out, or that he was instructed to conduct an investigation to find out, who had called OSHA.

Mario Lagunas testified that he started working at the plant at about the same time as plaintiff. He said plaintiff was a good employee and a good supervisor. He said he never heard anyone in management criticize plaintiff. Lagunas said there were smoke and paint dust in the plant in 1999 and 2000 and that masks were not available to all employees. Lagunas said the OSHA call was discussed in a weekly meeting he attended where...