Marin v. American Meat Packing Co.

• Decision Date: 28 September 1990
• Docket Number: No. 1-89-1908,1-89-1908
• Citation: 204 Ill.App.3d 302,562 N.E.2d 282,149 Ill.Dec. 818
• Parties: , 149 Ill.Dec. 818, 119 Lab.Cas. P 56,693, 6 IER Cases 347 Javier MARIN, Plaintiff-Appellee, v. AMERICAN MEAT PACKING COMPANY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 282

562 N.E.2d 282

204 Ill.App.3d 302, 149 Ill.Dec. 818,

119 Lab.Cas. P 56,693,

6 IER Cases 347

Javier MARIN, Plaintiff-Appellee, v. AMERICAN MEAT PACKING COMPANY, Defendant-Appellant.

No. 1-89-1908.

Appellate Court of Illinois,

First District, Second Division.

Sept. 28, 1990.

McDermott, Will & Emery, Chicago (Stephen Erf, Nancy Ross and Jennifer Walz, of counsel), for defendant-appellant.

Robert H. Hanaford, Ltd., Chicago (Robert Hanaford and Ken Del Valle, of counsel), for plaintiff-appellee.

Justice HARTMAN delivered the opinion of the court:

Plaintiff, Javier Marin, brought an action for retaliatory discharge against his employer, American Meat Packing Company (AMPAC), claiming he was fired for filing a claim under the Worker's Compensation Act (Ill.Rev.Stat.1983, ch. 48, par. 138.1 et seq.) (Act). A jury found AMPAC liable to Marin in the amount of $74,626.40 in compensatory and $75,000 in punitive damages.

On appeal, AMPAC argues, inter alia, that the circuit court erred in denying its motions for judgment notwithstanding the verdict and for a new trial; and in refusing to instruct the jury properly. We reverse and remand for a new trial.

Marin started working at AMPAC, a hog slaughterhouse, in 1975, and was employed there continuously until September 3, 1981, except for a company lay-off in 1976 and a work-related injury resulting in a two week absence in 1978. His duties included butchering.

On September 3, 1981, Marin sprained his back while attempting to pick up some entrails that had fallen to the floor. The next day, his supervisor referred him to the Yards Industrial Clinic for treatment, which he visited five times during the next month. He was hospitalized by his doctor until November 2, 1981. On November 13, 1981, Marin filed a claim with the Industrial Commission and returned to work on December 3, 1981 with a doctor's certificate. He continued to work until December 8, 1981 when he reinjured his back, returned to the Yards Clinic, and was again hospitalized. Marin was discharged on January 16, 1982, and he returned to AMPAC two to three days later to pick up his compensation check from Cathleen Heffernan, AMPAC's industrial nurse. According to Marin, Heffernan stated "Oh, Mr. Marin, you are at the hospital. Don't you think that the firm is spending enough money with you at the hospital." She then "threw" the check at him in "anger."

On January 21, 1982, Marin saw Dr. S.P. Kaushal, who had him admitted to Edgewater Hospital the next day. Marin was discharged on February 2, 1982. Dr. Kaushal later recommended physical therapy treatment, to be commenced February 16.

On February 26, 1982, Marin received a certified letter from AMPAC, which he took to his attorney to read. The letter stated that his doctor had released him for return to work on February 16 and that he had not yet reported to work. Marin was informed that if he did not return by February 26, AMPAC would assume that he had voluntarily quit. Marin understood the letter. He averred that he was still under Dr. Kaushal's treatment on February 16 and was not released to work on that date nor was he given a return to work certificate, as required by company policy.

Dr. Kaushal gave Marin his return to work permit at Marin's office visit of March 1, 1982. Marin arrived at work the next day at 7:30 a.m. and gave the permit to Richard Bachert, the plant superintendent. Marin overheard Bachert tell the nurse, "[l]ook at this paper. This stupid doctor gives him light work." The nurse and superintendent then went into the nurse's office. When Bachert came out, he instructed Marin to wait in the cafeteria. Bachert then went into Clark's office, the company "president." When Bachert came out of that office, he told Marin that Mr. Clark said that he no longer had a job. At the close of Marin's testimony, plaintiff rested. The court denied AMPAC's motion for a directed verdict.

Richard Bachert was AMPAC's plant superintendent from August 1979 through May 1982. His responsibilities included the hiring and firing of personnel, as well as employee discipline. His superior was vice president Larry Clark. Bachert spoke often with Marin, and the conversation was always in English. Bachert asked AMPAC's nurse to follow up on Marin's accident and health status on February 16. Marin's doctor told her that he had released Marin and he was supposed to be at work. The nurse also telephoned Marin's home and spoke with his wife, who told her that she would inform Marin of the situation. Bachert then sent Marin a certified letter stating that he was to report to work by February 26 or AMPAC would assume that he had voluntarily quit. The return receipt indicated that Marin received the letter on February 26.

On March 2, 1982, Marin reported for work with a doctor's permit and asked Bachert, "Do I still have a job?" Bachert said no, because Marin "didn't do what * * * [he was] supposed to do by the date * * * [he was] supposed to do it." Clark's name was not mentioned during this conversation. Marin was not dressed in his normal work attire.

Cathleen Heffernan worked at AMPAC from November 1981 through January 1985. She corroborated Bachert's account of their February 16 conversation. Heffernan phoned Dr. Kaushal's office and reported to Bachert that the doctor told her Marin's physical therapy had been scheduled for Wednesday evening so as not to interfere with work.

On March 2, 1982, Marin came into her office, presenting Dr. Kaushal's return to work permit. One of her duties at AMPAC was to distribute compensation checks. She had never seen Marin prior to March 2, 1982 and was unaware that he had filed a claim for worker's compensation with the Illinois Industrial Commission. She could not explain the discrepancy between the unrestricted work release that Dr. Kaushal told her about over the phone and the "light work" restriction on the pass Marin presented to her upon his return on March 2, 1982.

Frank Dlugopolski, AMPAC's maintenance supervisor at the time of the incident, was in the lunchroom and overheard the exchange between Marin and Bachert. His testimony mirrored that of Bachert's.

Following closing arguments, the jury returned the verdict for Marin as noted above, finding that Marin did not abandon his employment. AMPAC filed post-trial motions for judgment n.o.v., for a new trial, and for remittitur on damages. On June 15, 1989, the circuit court denied AMPAC's motions for judgment n.o.v. and for a new trial, but granted its motion for remittitur, reducing the compensatory damages to $66,898.48, based on evidence that Marin would not have worked during a nine month strike.

I.

AMPAC initially argues that the circuit court erred in denying its motions for judgment n.o.v. and for a new trial because the evidence showed that AMPAC discharged Marin for non-retaliatory reasons and that all Marin's rights under the Act were observed.

The tort of retaliatory discharge recognized in Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (Kelsay ), is an exception to the general rule that "at will" employment is terminable at any time for any or no reason. (Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 128, 52 Ill.Dec. 13, 421 N.E.2d 876.) A strong public policy exists to insure the protection of workers covered by the Act; an employee may bring a civil tort action against an employer for discharging the employee for filing a claim under the Act. Kelsay.

To establish a claim of retaliatory discharge, a plaintiff must show that (1) he was an employee of defendant before the injury; (2) he exercised a right granted by the Act; and (3) his discharge was causally related to the filing of a claim under the Act. (Slover v. Brown (1986), 140 Ill.App.3d 618, 620, 94 Ill.Dec. 856, 488 N.E.2d 1103.) Causality does not exist if the reason for the discharge is valid and nonpretextual. (Slover v. Brown, 140 Ill.App.3d at 621, 94 Ill.Dec. 856, 488 N.E.2d 1103.) A pretext has been defined as "a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs." Wayne v. Exxon Coal USA, Inc. (1987), 157 Ill.App.3d 514, 518, 109 Ill.Dec. 600, 510 N.E.2d 468.

A judgment n.o.v. should only be entered in those cases where "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern Railroad Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.

In the case sub judice, in considering all the circumstances, it cannot be said that when all the evidence is viewed most favorably to Marin, it so overwhelmingly favors AMPAC that no verdict in Marin's favor could ever stand.

The record supports AMPAC's motion for a new trial, however. The standards relating to a judgment n.o.v. and to a motion for a new trial are different. (Mizowek v. De Franco (1976), 64 Ill.2d 303, 310, 1 Ill.Dec. 32, 356 N.E.2d 32.) A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or the jury's findings are unreasonable, arbitrary and not based upon the evidence. (Anderson v. Beers (1979), 74 Ill.App.3d 619, 30 Ill.Dec. 516, 393 N.E.2d 552.) On a motion for a new trial, the circuit court must determine whether the jury's verdict was against the manifest weight of the evidence. Mizowek v. De Franco, 64 Ill.2d at 310, 1 Ill.Dec. 32, 356 N.E.2d 32.

At bar, Marin testified that he filed a workers' compensation claim in November 1981 and received benefits. He returned to work in December without incident. After reinjuring his back, and upon claiming a benefits check, AMPAC's nurse made a disparaging remark about his hospital bills and "threw" his check at him. Bachert then made the remark about Marin's light work restriction upon Marin's return. Marin, however, offered no evidence that AMPAC hired...