Thompson v. Abbott Laboratories

Decision Date16 January 1990
Docket NumberNo. 2-89-0108,2-89-0108
Citation549 N.E.2d 1295,193 Ill.App.3d 188
Parties, 140 Ill.Dec. 423 Mary THOMPSON, Plaintiff-Appellant, v. ABBOTT LABORATORIES, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Harold A. Katz, David E. Rapoport (argued), Irving M. Friedman, Katz, Friedman, Schur & Eagle, Chicago, for Mary Thompson.

Michael J. Cummins, Waukegan, James A. Burstein (argued), Jeri A. Lindahl, Pope, Ballard, Shepard & Fowle, Ltd., Chicago, for Abbott Laboratories.

Presiding Justice UNVERZAGT delivered the opinion of the court:

Plaintiff, Mary Thompson, brought a complaint against defendant, Abbott Laboratories, in the circuit court of Lake County, claiming that she had been discharged for filing and pursuing a claim for worker's compensation benefits. Defendant maintained that plaintiff's discharge was due to excessive absenteeism. The jury returned a verdict in defendant's favor. The trial court entered judgment on the verdict and, subsequently, denied plaintiff's post-trial motion.

On appeal, plaintiff raises six issues: (1) that the trial court erred in refusing to tender plaintiff's "mixed motives" instructions to the jury; (2) that the trial court erred in refusing plaintiff's instruction on the failure of a party to call a witness; (3) that the trial court erred in allowing the jury to hear evidence of the charges filed by plaintiff with the Equal Employment Opportunity Commission; (4) that the trial court erred in refusing to allow the jury to see the attendance records of two of plaintiff's co-workers for the years following plaintiff's termination; (5) that the allowable compensatory damages in the instant case should have included pain and suffering, emotional distress, and loss of reputation; and (6) that the trial court erred in denying plaintiff a new trial.

The testimony at trial revealed that plaintiff, Mary Thompson, was hired by defendant, Abbott Laboratories, on March 25, 1969. She was continuously employed by defendant from that date until her termination on December 3, 1984. In December 1979, plaintiff was injured at work lifting I-V solution containers, hurting her right arm and shoulder. In September 1981, plaintiff filed a claim for worker's compensation benefits with the Illinois Industrial Commission after defendant denied plaintiff payment of certain medical bills and lost time. Plaintiff's claim was submitted to an arbitrator of the Industrial Commission in October 1982, resulting in an award of $9,100.

Chuck Santora, senior claims analyst in defendant's risk management department, supervised worker's compensation claims. In the fall of 1981, Santora was assigned plaintiff's worker's compensation case. According to Santora, defendant felt the arbitrator's decision was fair but that more of an offset should have been awarded to defendant because of compensation already paid by defendant to plaintiff. Therefore, defendant appealed the arbitrator's decision. In June 1983, a decision was made to offer plaintiff a settlement for $8,500, or $600 less than the arbitrator's award. Santora did not know whether the offer was ever conveyed to plaintiff.

On the date of plaintiff's discharge, December 3, 1984, defendant's appeal of the arbitrator's award was still pending. Santora stated that on January 25, 1985, he dismissed the appeal in an attempt to minimize defendant's costs. Although Santora learned after plaintiff's discharge that she had been fired, he was uncertain whether he knew this fact at the time of the dismissal of defendant's appeal. Santora denied any relationship between plaintiff's termination and the subsequent dismissal of defendant's appeal.

In July 1983, plaintiff was working in defendant's quality assurance department, department 817, as a quality control technician, having originally been assigned to quality assurance in 1973. Tim Tomkovich became the supervisor of department 817 in July 1983. In adhering to the attendance policy of the department, Tomkovich reviewed the attendance records of all employees under his supervision. Tomkovich testified that if an employee had a past record of continued absenteeism and this absenteeism continued after he became supervisor, he decided to talk with that employee.

In 1982, plaintiff had had 15 absences, constituting 11 incidences. In 1983, she had been absent 23 days from five incidences. From December 12, 1983, through January 20, 1984, plaintiff had had eight absences resulting from four incidences. On February 6, 1984, Tomkovich counselled plaintiff regarding her excessive absenteeism and placed her on a four-month review period, or probation. Tomkovich testified that he did not know of plaintiff's worker's compensation claim at the time she was placed on probation and that he did not learn of the claim until after plaintiff was terminated.

On April 6, 1984, during her review period, plaintiff was absent again. Tomkovich stated that he discussed this absence with plaintiff and gave her a final warning that any further absence would result in termination. Tomkovich also informed plaintiff that her review period might be extended. During this discussion with plaintiff, plaintiff advised Tomkovich that her arm hurt from working on the "SGL packing line," a glass bottle line, and that she was unable to perform the requirements of the job. Later, Tomkovich informed plaintiff that she would be taken off the SGL packing line and placed at the stopper inspection station so she would not have to handle the weight of the bottles on the line, thereby relieving some of the strain on her arm.

From June 8 through July 13, 1984, plaintiff was absent. As of July 19, 1984, when Tomkovich again met with plaintiff, plaintiff had accumulated 29 absences for the year. Tomkovich informed plaintiff that her probation was being extended through November 16, 1984, and that any further absences could result in termination.

During this probation period plaintiff was absent from November 8 through November 16, 1984. Tomkovich met with his manager, Dave Chapman, informing Chapman that Tomkovich's counselling sessions with plaintiff had not resulted in any improvement in her attendance. Tomkovich testified that based upon the lack of improvement in plaintiff's attendance record, he and Chapman decided to recommend plaintiff's termination. Tomkovich and Chapman then met with Arnold Radtke, an employee relations representative, to recommend plaintiff's termination.

Arnold Radtke related that on November 20, 1984, Tomkovich and Chapman came to see him. Tomkovich and Chapman wanted to discharge plaintiff, and their documentation in support of the discharge included plaintiff's attendance records for 1983 and 1984. Prior to this meeting, plaintiff had met with Radtke on September 7, 1984, requesting copies of her attendance records. Plaintiff told Radtke that she was being treated unfairly, that she was currently on probation, and that her August pay adjustment had been withheld. Plaintiff maintained that her absences were due to a 1979 work-related injury. In this meeting, plaintiff did not relate to Radtke, either verbally or in writing, that Tomkovich had threatened to fire her because she had filed a worker's compensation claim. Plaintiff told Radtke that her mistreatment by management began when she exercised her policy 222 rights in 1976. Policy 222 was an open-door policy whereby an employee could go to anyone in management to resolve a problem regardless of the type of problem. In 1976, plaintiff had contacted the defendant's chairman of the board regarding a dispute she had with management over a pay increase. As a result, plaintiff obtained the increase.

On October 23, 1984, plaintiff contacted Radtke again, requesting more attendance records.

Radtke described the procedure for firing an employee, explaining that documentation to support an employee's termination would be brought to an employee relations representative who would review it and prepare a work sheet. The documentation and the requests for termination would then be reviewed by higher level managers. Radtke stated that an employee relations representative's role in a discharge was to check the technical aspects of the discharge and to ensure fairness. In plaintiff's situation Radtke reviewed records of absenteeism by others in plaintiff's department before reaching any decision regarding plaintiff's termination. Radtke wanted to make certain that others with worse attendance records than plaintiff had also received warnings or had action taken against them and that there was no disparate treatment based on age, sex, or racial factors.

During trial it was brought up that two of plaintiff's co-workers also had had excessive absences during 1983. Cremolia Diggs was absent 53 days in 1983. Betty Burns missed a total of 73 days in 1983 and 1984, although 38 days in 1983 and 19 days in 1984 were due to a broken leg. Both women were placed on probation by Tomkovich in 1984. For the remainder of 1984, Burns missed six days of work. Diggs missed four days in 1984 following her probation period. Neither woman was absent during her review period.

Radtke also testified that he reviewed plaintiff's case with Pete Kinyon, manager of employee relations, Bill Kruger, director of defendant's Lake County personnel, Marv Johnson, manager of corporate employee relations, and Tom Trimble, one of defendant's corporate attorneys. All agreed that plaintiff should be terminated. Plaintiff's termination was effective on December 3, 1984. On that date, plaintiff asked to see those individuals in upper management who were involved in the decision to terminate her. As some were not present at that time, an appointment was set up for plaintiff. Radtke stated that plaintiff never returned for that appointment.

Plaintiff, Mary Thompson, testified that the attendance records kept by defendant were accurate. Plaintiff stated that she was under medical care for two...

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