Netzel v. United Parcel Service, Inc.

• Citation: 181 Ill.App.3d 808,130 Ill.Dec. 879,537 N.E.2d 1348
• Decision Date: 29 March 1989
• Docket Number: No. 1-85-1606,1-85-1606
• Court: United States Appellate Court of Illinois
• Parties: , 130 Ill.Dec. 879, 123 Lab.Cas. P 57,161 Thomas NETZEL, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.

Page 1348

537 N.E.2d 1348

181 Ill.App.3d 808, 130 Ill.Dec. 879,

123 Lab.Cas. P 57,161

Thomas NETZEL, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.

No. 1-85-1606.

Appellate Court of Illinois,

First District, Third Division.

March 29, 1989.

Marvin A. Brustin, Ltd., Chicago, for plaintiff-appellant.

Keck, Mahin & Cate, Chicago, for defendant-appellee.

Presiding Justice FREEMAN delivered the opinion of the court:

Plaintiff, Thomas Netzel, appeals from the trial court's grant of a new trial on both liability and damages in his suit for retaliatory discharge against defendant, United Parcel Service, Inc. (UPS). At trial, a jury found in plaintiff's favor and awarded him $200,000 in compensatory damages.

This court's prior opinion (Netzel v. UPS, Inc. (1987), 165 Ill.App.3d 685, 117 Ill.Dec. 314, 520 N.E.2d 665), finding that plaintiff's claim for retaliatory discharge had been preempted by section 301 of the Labor Management Relations Act (29 U.S.C. § 185(a) (1976)), was reversed by the supreme court in a supervisory order based on, inter alia, Lingle v. Norge Division of Magic Chef (1988), 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 and Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill.2d 1, 104 Ill.Dec. 751, 503 N.E.2d 308, cert. denied (1987), 483 U.S. 1032, 107 S.Ct. 3248, 97 L.Ed.2d 779.

Plaintiff injured his knee while working as a package car driver for UPS on June 7, 1977. Plaintiff was off the job for extended periods in between which he unsuccessfully attempted to return to work. Plaintiff filed a claim under the Workmen's Compensation Act (the Act) (Ill.Rev.Stat.1977, ch. 48, par. 138.1 et seq.) on July 12, 1978. On June 7, 1977, and three subsequent occasions on which he attempted to return to work, including August 7, 1979, the date of his discharge, plaintiff could not continue his route of package deliveries and pick-ups due to pain and swelling in his knee. On June 7, 1977, and the two occasions prior to his discharge when he could not continue working, a supervisor granted plaintiff permission to return to the UPS distribution center with undelivered packages or "NDA's" (no delivery attempted). Plaintiff maintained at trial that he was also given permission to return to the distribution center on August 7, 1979. Defendant maintained that plaintiff was ordered to remain on his route until a supervisor went out to assist him in completing his route.

After his discharge, plaintiff sued, alleging he was discharged in violation of section 4(h) of the Act (Ill.Rev.Stat.1977, ch. 48, par. 138.4(h)) for filing a claim thereunder. After the jury verdict for plaintiff, UPS filed a post-trial motion. UPS requested either a directed verdict at the close of plaintiff's case in chief, judgment notwithstanding the verdict, a new trial or a remittitur.

The trial court denied UPS' motion for a judgment n.o.v. It did not rule on the motion for a directed verdict or remittitur. The trial court granted UPS a new trial on both liability and damages. The court found that there was no evidence linking plaintiff's discharge "with his having filed a [w]orkmen's [c]ompensation [c]laim more than one year prior to his discharge." The court also found that the damage award could not stand because of plaintiff's testimony that he could not perform the work required of a UPS driver after his injury and because the jury did not give him "credit for some of the benefits he received." By this last remark, the trial court was apparently referring to disability payments plaintiff received after his discharge.

Before addressing the merits of plaintiff's appeal, we must address UPS' claim that we should apply to his case the standards applied by Federal courts to employment discrimination cases brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq. (1976)). Therein, a plaintiff must make out a prima facie case which a defendant must rebut by adducing some evidence of lawful motivation for the challenged action. If the defendant does so, the plaintiff must then prove that the defendant's reason for the challenged action is pretextual. McDonell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668.

No Illinois court has applied the standards under the Civil Rights Act of 1964 to claims of retaliatory discharge brought under Illinois law. We therefore decline to do so here. We believe that such cases should be reviewed under a traditional tort analysis. The cases most like retaliatory discharge cases involve claims of breach of employment contracts by wrongful discharge. Therein, the employer must show that the plaintiff was guilty of conduct justifying his discharge. (Lukasik v. Riddell, Inc. (1983), 116 Ill.App.3d 339, 346, 72 Ill.Dec. 123, 452 N.E.2d 55; Foster v. Springfield Clinic (1980), 88 Ill.App.3d 459, 464, 43 Ill.Dec. 604, 410 N.E.2d 604.) Whether the plaintiff disobeyed reasonable orders and was thus terminated for good cause is a question for the trier of fact. (Lukasik; Foster.) These are proper considerations for a jury evaluating a claim of retaliatory discharge. However, a plaintiff must still convince the trier of fact only by a preponderance of the evidence that he was discharged for exercising his rights under the Workmen's Compensation Act.

On appeal, plaintiff first contends the trial court abused its discretion in ordering a new trial because the jury's verdict was not against the manifest weight of the evidence.

A motion for new trial is addressed to the sound discretion of the trial court and its decision will not be disturbed absent a clear abuse of discretion. (Cadral Corp. v. Solomon, Cordwell, Buenz & Associates (1986), 147 Ill.App.3d 466, 100 Ill.Dec. 923, 497 N.E.2d 1285.) The standard to be applied in deciding a motion for new trial is whether the jury's verdict was against the manifest weight of the evidence. (Mizowek v. DeFranco (1976), 64 Ill.2d 303, 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, 623, 30 Ill.Dec. 516, 393 N.E.2d 552.) In determining the propriety of a new trial, neither a trial nor reviewing court "should sit as a second jury to consider the nuances of the evidence or the demeanor or credibility of the witnesses." Kitsch v. Goode (1977), 48 Ill.App.3d 260, 271, 6 Ill.Dec. 17, 362 N.E.2d 446. Applying these principles here, we conclude that the jury drew reasonable inferences from the conflicting evidence before it. As such, the trial court erred in granting UPS a new trial.

Preliminarily, we conclude that the trial court erred in granting UPS a new trial based on its finding that there was no evidence linking plaintiff's discharge to his filing a workmen's compensation more than a year before he was fired. Specifically, we believe the trial court erred in focusing on the filing of the claim as the action in retaliation against which plaintiff was discharged. Section 4(h) of the Act makes it illegal for employers to discharge an employee "because of the exercise of his or her rights or remedies granted" by the Act. (Ill.Rev.Stat.1977, ch. 48, par. 138.4(h).) The rights plaintiff asserts in his brief, viz., to stop working and to seek medical attention for his injuries, are not specifically enumerated in the Act. Plaintiff's right to receive benefits thereunder for as long as he was unable to work nonetheless deserves protection under the statute. As such, the passage of time from the date of filing a claim for adjustment under the Act to the date of discharge of an employee-claimant cannot be allowed to insulate an employer from liability for retaliatory discharge. Rather, where an employee can prove that the employer's motive was retaliation for the exercise of his rights under the Act, despite the passage of time, he is entitled to a recovery. For that reason, UPS' reliance on the passage of time as negating any retaliatory motive is similarly without merit.

The evidence adduced at trial satisfied plaintiff's burden. Under the circumstantial evidence adduced, it was within the bounds of reason for the jury to infer a retaliatory motive for plaintiff's discharge.

Plaintiff testified that UPS summoned him to a safety meeting in April 1979. According to plaintiff, when Wayne Bigonin, the UPS distribution center manager who later fired him, saw him in a cast he told plaintiff that it was a bunch of "crap" and "bullshit" and that he should have returned to work long before then.

The fact that the UPS officer who fired plaintiff had earlier accused him of feigning injury and malingering must have had a significant impact upon the jury. We disagree with UPS that it merely showed, at worst, that Bigonin's motive for discharging plaintiff was his belief that plaintiff was feigning injury, not retaliation for the exercise of his rights under the Act. This evidence could be reasonably interpreted as revealing Bigonin's displeasure with plaintiff's prolonged exercise of his statutory rights rather than an actual belief that plaintiff was feigning injury.

Plaintiff also testified that he had been permitted to return to the distribution center with NDA's when he was first injured and on the two subsequent occasions when he had unsuccessfully attempted to return to work.

This testimony could have been reasonably interpreted by the jury as evidence either that plaintiff was given permission to return to the distribution center with NDA's on August 7, 1979 or that his return with such packages was not the real reason for his discharge, contrary to UPS' position at trial. We disagree with UPS that this testimony was subject only to the interpretation proffered by it. UPS asserts that the fact that plaintiff returned with NDA's on two occasions after he filed his workmen's...