Kritzen v. Flender Corp.
| Citation | 168 Ill.Dec. 509,589 N.E.2d 909,226 Ill.App.3d 541 |
| Decision Date | 13 March 1992 |
| Docket Number | No. 2-90-1281,2-90-1281 |
| Parties | , 168 Ill.Dec. 509 Werner KRITZEN et al., Plaintiffs-Appellees and Cross-Appellants, v. FLENDER CORPORATION, Defendant-Appellant and Cross-Appellee. |
| Court | United States Appellate Court of Illinois |
Halfpenny, Hahn & Roche, George W. Keeley, Michael T. Reid, argued, Chicago, for Flender Corp.
Gary B. Friedman, Roy P. Olson, argued and on the brief, Jay R. Giusti, on the brief, Gary B. Friedman, Ltd., Chicago, for Werner Kritzen.
The plaintiffs employees, Werner Kritzen, Ma Phetsisouk, and George Saridis, each brought a retaliatory discharge case against the defendant company, Flender Corporation. The cases were consolidated in the trial court. The jury awarded damages to each plaintiff, and the court denied the bulk of the company's post-trial motion, granting only partial remittitur of Kritzen's and Phetsisouk's lost wages awards. The company brought this appeal. The plaintiffs have cross-appealed.
On appeal, the company argues that the court erroneously denied its motions for judgment notwithstanding the verdict and for a new trial. According to the company, the evidence shows that the plaintiffs were discharged pursuant to the company's rule against 26 weeks of absence and that there did not exist evidence either of retaliatory motivation or of willful or wanton action. The company also argues that the court erred in instructing the jury and in barring evidence. Lastly, it argues that the compensatory and punitive damage awards are excessive and require a new trial or remittitur.
On cross-appeal, the plaintiffs challenge the court's treatment of their request to admit. They also question the jury instruction on proper consequences of a finding that the company violated the Workers' Compensation Act (), prohibition against retaliation, the court's refusal of affidavits, the court's denial of their motion to conform the pleadings to the proof, and the jury instruction that an unconditional offer of reemployment should cut off damages.
The three plaintiffs in this case were all hourly laborers for the company. All apparently were satisfactory employees. Each of them was off work for an extended disability, filed for workers' compensation benefits, and was discharged from employment by the company. Each plaintiff brought his own claim that he had been discharged in retaliation for his workers' compensation filing. The three claims were consolidated for trial.
In response to each of the charges, the company claimed that the discharge was not motivated by retaliation. Rather, according to the company, the three plaintiffs were discharged pursuant to a company policy to terminate any employee who had been absent from work for 26 weeks (the 26-week policy). The policy covered work-related and nonwork-related disabilities equally.
The court determined that the company's 26-week policy did not per se violate Illinois public policy. It submitted the plaintiffs' claims to the jury. The jury returned an award for lost wages; pain, suffering, and emotional distress; and punitive damages for each plaintiff. Thereafter, on the company's motion, the court reduced the lost wages awards to reflect the company's completed payments of temporary total disability benefits to the plaintiffs Kritzen and Phetsisouk. The awards and reductions were as follows:
Kritzen: Lost Wages: $ 23,858 (jury award)
9,315 (judgment)
Pain, Suffering and Emotional Distress: 10,000
Punitive Damages: 150,000
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Sub-total after court deductions $169,315
Phetsisouk: Lost Wages: $178,659 (jury award)
167,416 (judgment)
Pain, Suffering and Emotional Distress: 10,000
Punitive Damages: 150,000
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Sub-total after court deductions $327,416
Saridis: Lost Wages: 34,000
Pain, suffering and Emotional Distress: 10,000
Punitive Damages: 150,000
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Sub-total after court deductions $194,000
GRAND TOTAL JUDGMENT $690,731
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Before we consider the merits of this appeal, we first address the plaintiffs' motion to strike portions of the company's statement of facts. The plaintiffs have identified sections of the company's statement of facts and charged that they are without basis in the cited portions of the record or that they are improperly based on excluded evidence. The company argues first that the plaintiffs have waived their specific objections by not raising them in their prior motion to strike. Secondly, the company argues that the plaintiffs' arguments are hypertechnical and related only to uncontested background information. Lastly, the company argues that its statement of facts contains properly presented facts necessary to understand the appeal.
We address the plaintiffs' motion and find certain unsupported elements in the company's brief. (134 Ill.2d R. 341(e)(6).) However, we find no flagrant violations that hinder our review and will consider the brief while disregarding its inappropriate content. James v. Shig Yasunaga (1987), 157 Ill.App.3d 450, 452, 109 Ill.Dec. 663, 510 N.E.2d 531.
On the merits, the company first argues that the court erroneously denied its motions for judgment notwithstanding the verdict and for a new trial on the issue of liability. According to the company, there is no evidence of retaliatory motivation and the uncontradicted and unrebutted evidence established that the plaintiffs were terminated pursuant to the company's 26-week policy.
On review, the denial of a motion to grant a new trial will be disturbed only if it was an abuse of discretion; the applicable standard of review asks whether the jury's verdict was against the manifest weight of the evidence. (Netzel v. United Parcel Service, Inc. (1989), 181 Ill.App.3d 808, 812, 130 Ill.Dec. 879, 537 N.E.2d 1348.) Judgment notwithstanding the verdict is properly granted when, evaluating all the evidence in the light most favorable to the nonmoving party, the jury's verdict cannot stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.) The evaluation of witnesses and the weighing of testimonies is for the jury, and not the trial court, to do. Kitsch v. Goode (1977), 48 Ill.App.3d 260, 6 Ill.Dec. 17, 362 N.E.2d 446.
The evidence in this case is voluminous. We will briefly summarize its content. It showed that plaintiff Werner Kritzen, now age 38, was hired as a machinist for the company in October 1985. Kritzen worked until he was disabled by a back injury on August 11, 1986. Thereafter, he remained off work until he was released for duty on October 29, 1986. Kritzen worked on that day but reinjured his back and remained off work thereafter. In mid-December 1986, Kritzen filed and the company received a copy of his workers' compensation claim.
In February 1987, Donald Holdren, then the company's comptroller and personnel manager, calculated Kritzen's absence under the company's 26-week policy and determined that Kritzen's employment should be terminated as of February 10, 1987. After Holdren's suggestion to that effect was reviewed by company attorney D. Tyner Brown, the company sent a termination letter dated February 6 and changed the plaintiff's payroll status to reflect termination on February 10. Holdren testified that he was unaware of Kritzen's workers' compensation claim until he was served with Kritzen's retaliatory discharge complaint.
The company hired plaintiff George Saridis as a machinist in 1982. Prior to 1987, Saridis began to experience allergic reactions connected with his work at the company. After taking a week of vacation for medical treatment in February 1987, Saridis remained off work for allergy care. Holdren directed the matter to the company's workers' compensation insurer. Early in April 1987, after the company changed a coolant it was using, Saridis returned to work for one full day and one partial day. Thereafter, he was off work because of his allergic condition.
Because Saridis' absence was a particular problem for the company and because Saridis acknowledged that he might never be able to return to work at the company, in April 1987 Holdren asked him if he wanted to resign. Saridis declined. In mid-June 1987, the company received notice that Saridis had filed for workers' compensation benefits. In mid-August 1987, Saridis received notice from the company that he had been terminated; the company's letter referenced a doctor's report and the 26-week policy.
The third plaintiff, Ma Phetsisouk, now age 45, was hired by the company in 1981 and worked on several machines. In May 1987, Phetsisouk injured his back and was absent intermittently from work until August 26, 1987; he did not thereafter return to work for the company. On February 8, 1988, Phetsisouk filed a workers' compensation claim. It was stamped received by the company on February 11. In February 1988, the company's new personnel manager, Margaret Hock, counted Phetsisouk's days off from work, excluding vacation, sick, and short-term disability periods. She calculated February 18, 1988, as Phetsisouk's termination date under the 26-week policy. Phetsisouk received a letter giving notice of that decision on February 18. Hock believed that she had done the calculation several days before...
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