Mercil v. Federal Exp. Corp., 83 C 4593.

• Decision Date: 04 February 1987
• Docket Number: No. 83 C 4593.,83 C 4593.
• Citation: 664 F. Supp. 315
• Parties: William R. MERCIL, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Illinois

664 F. Supp. 315

William R. MERCIL, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant.

No. 83 C 4593.

United States District Court, N.D. Illinois, E.D.

February 4, 1987.

John D. Knightlinger, Meinhardt & Knightlinger, Arlington Heights, Ill., for plaintiff.

Roger L. Taylor, Kirkland & Ellis, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

William Mercil was an at-will employee of defendant Federal Express Corporation ("Federal") until he was discharged on December 14, 1982, purportedly for violating a company policy against the falsification of company documents. He filed this diversity action for retaliatory discharge against Federal claiming that his firing was actually in retaliation for a workers' compensation claim for permanent disability benefits which he was planning to file at the time of his dismissal. Federal now moves for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons that follow, Federal's motion is granted.

I. FACTUAL BACKGROUND

The following facts are essentially undisputed. Mercil was employed by Federal as a sorter and then a delivery driver on an at-will basis from February 1975 until December 1982. On December 9, 1982, Mercil delivered a letter to a customer who was not at home. Although it was stated in various Federal procedure manuals that packages and letters should not be left without first obtaining the signature of the recipient, Mercil printed the recipient's name in the signature column of the delivery record and left the package unattended. The letter was temporarily lost, and Federal received a formal complaint from the recipient. Following an inquiry into this incident, Mercil's manager at Federal, Ron Foster, fired Mercil on December 14, 1982. Mercil applied for relief through Federal's "Guaranteed Fair Treatment Procedure" ("GFTP"), an internal appeal process, but was unsuccessful in his quest to be reinstated. The final step of the GFTP through which Mercil pursued his claim was completed on February 2, 1983, when the Appeals Board at Federal upheld the decision to fire him. None of the written materials submitted to Federal by Mercil during the GFTP indicated that he intended to file a permanent disability claim, nor did Mercil orally inform any of the Federal employees involved in the GFTP review process of his intention.

Approximately one year earlier, in November 1981, Mercil had incurred an injury to his left arm and requested payment from Federal for the related medical expenses and lost pay during his recovery. Federal paid these benefits to Mercil, although it is disputed whether it did so of its own volition or as a result of Mercil's threat of legal action. The same injury continued to cause problems for Mercil, and he had scheduled himself for corrective surgery for December 20, 1982. On February 28, 1983, following his discharge, Mercil filed a workers' compensation claim for permanent disability benefits in connection with his arm injury, and Federal issued a check to him for this injury in May of that year.

II. SUMMARY JUDGMENT

In order to prevail, the moving party in a summary judgment motion under Fed.R. Civ.P. 56 must demonstrate that there is no genuine issue of material fact such that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of clearly establishing the absence of a triable fact issue. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). To successfully counter the motion, the non-moving party must indicate that there is sufficient evidence in the record from which a reasonable jury could return a verdict for him. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Mercil brings this action under the Illinois common law tort of retaliatory discharge, first recognized by the Illinois Supreme Court in Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978). In Kelsay, the court held that at-will employees could maintain a cause of action against their employers if they were fired in retaliation for asserting their rights under the Illinois Workers' Compensation Act.¹Id. at 181, 23 Ill.Dec. at 563, 384 N.E.2d at 357. The court expanded the tort in Palmateer v. International Harvester Co., 85 Ill.2d 124, 129-30, 52 Ill.Dec. 13, 15, 421 N.E.2d 876, 878 (1981), to encompass protection from all employee terminations contrary to public policy. Thus, the court has altered the customary at-will employment relationship to mean that while an at-will employee may be fired for good reason or for no reason at all, he or she may not be fired for a reason which would contravene public policy, such as coercive discouragement from asserting rights under the workers' compensation statute. Id. at 128, 52 Ill.Dec. at 15, 421 N.E.2d at 878.

A retaliatory discharge claim requires the following elements. First, the plaintiff must have been an employee of the defendant before the injury occurred. Second, the plaintiff must have exercised or threatened to exercise a right granted by the workers' compensation act. Finally, the plaintiff's termination must have been causally related to his or her filing of a claim or statement of intent to file a claim under the act. Horton v. Miller Chemical Co., 776 F.2d 1351, 1356 (7th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1641, 90 L.Ed.2d 186 (1986); Slover v. Brown, 140 Ill.App.3d 618, 620-21, 94 Ill.Dec. 856, 858, 488 N.E.2d 1103, 1105 (5th Dist.1986).

The causation element is not met if the employer has a valid basis, which is not a pretext, for discharging the plaintiff. Slover, 140 Ill.App.3d at 620-21, 94 Ill.Dec. at 858, 488 N.E.2d at 1105. We note, however, that because an at-will employee may properly be fired for no reason at all, Palmeteer, 85 Ill.2d at 128, 52 Ill.Dec. at 15, 421 N.E.2d at 878, the employer need not tender a legitimate reason for the termination if the employee has not proved, or at least presented a prima facie case, that he or she was fired in retaliation for asserting workers' compensation act rights.

The primary dispute in this case concerns the evidence of causation, that is, the extent to which Mercil can prove that Federal had a retaliatory motive for firing him. Causation is relevant to both of Mercil's proposed theories of recovery which we address below.

A. Retaliation For Past Disability Payments

Mercil's first theory of recovery is that he was terminated because he sought and received past payments from Federal for his initial arm injury in late 1981 and early 1982. He testified at his deposition that Federal demonstrated hostility and resistance to paying any disability benefits at that time and that the company only relented when Mercil threatened legal action to enforce his rights. Deposition of William R. Mercil ("Mercil Dep.") at 51-55, 222-24. Federal denies that it was ever intransigent in dealing with Mercil's requests for payment of medical bills and lost pay during this period of temporary disablement.

The problem with Mercil's claim is that, while he alleges facts regarding the past receipt of benefits, he never pleads in his second amended complaint that his firing was motivated by this incident. In denying Federal's earlier summary judgment motion, Judge John F. Grady, to whom this case was previously assigned, stated:

As the first amended complaint stands now, plaintiff is claiming only that his discharge was motivated by his possible future workmen's compensation claim. If plaintiff now wants to claim that his discharge was based on his past receipt of benefits and his looming surgery, and that a discharge so motivated is actionable under Illinois law, then he should move to amend his claim to include such an allegation.

Mercil v. Federal Express Corp., No. 83 C 4593, slip op. at 3 (N.D.Ill. April 29, 1986) Available on WESTLAW, DCT database (emphasis added). Pursuant to Judge Grady's invitation, Mercil amended his complaint, but his new complaint still does not plead that he was fired as a result of his past receipt of benefits. In fact, Mercil's second amended complaint substantially mirrors his first amended complaint in that he specifically pleads that he was "finally terminated ... in retaliation for the contemplated Workmen's Compensation Claim." Plaintiff's Second Amended Complaint, ¶ 26 (emphasis added). It is not this Court's responsibility to correct the pleading errors of a plaintiff who has already had opportunities to make such corrections himself, especially where the specific theory of relief has already been flagged for him by another district court judge. Accordingly, we allow Federal's summary judgment motion on Mercil's retaliatory discharge complaint with respect to Federal's alleged motive of retaliation for pursuing past benefit claims.

B. Retaliation For Contemplated Permanent Disability Claims

Mercil's primary theory of recovery is that he was discharged by Federal in anticipation of his pending surgery and his contemplated workers' compensation claim for permanent disability benefits. He contends that there is sufficient evidence supporting this theory for his action to survive Federal's summary judgment motion. Specifically, he argues that there is evidence that (1) Federal's policy was not regularly enforced, thus raising the inference that Federal used the delivery incident as a convenient excuse to oust Mercil from the company; (2) Federal knew and was not pleased with Mercil's upcoming surgery and fired him rather than deal with any extended work leave; and (3) despite the fact that none of the relevant company officials were aware of Mercil's contemplated workers' compensation claim, other evidence supports a reasonable inference that he was fired in retaliation for this claim.

With regard to the company policy, Mercil proposes that other employees who printed package recipients' names in the signature part of the...