Labor, Employment, & Immigration I DECEMBER 30, 2014
Retaliatory Discharge Developments
Two recent cases, one from the Illinois Supreme Court, clarify the law of retaliatory discharge.
In the first case, Wayne Michael, Alan Hohman and Craig Kluemke worked for Precision Alliance Group, LLC, (“Precision”) an agricultural supply business dealing in soybean seeds.
Hohman worked on the bagging line and was responsible for insuring proper weights, lot numbers, seed count, and dates. Kluemke worked in the bagging room and then the warehouse and was responsible for taking product off the line, moving it to various places around the warehouse, and staging the product for shipment. Michael worked in the warehouse and in shipping.
Precision began noticing a problem with underweight seed bags. Illinois law requires that every bag labeled as containing a certain weight of seeds actually weigh that amount.
Precision randomly checked bags in the warehouse to determine if there was an ongoing problem.
In January 2003, employee Shawn Dudley was terminated for engaging in horseplay. After being fired, Dudley told Hohman that if Precision successfully challenged his application for unemployment compensation, he would call the authorities and report the weight problems with the seed bags, stating “if they want to play hardball with me, I’ll play hardball with them.” This threat was later relayed to assistant plant manager Matt Alcorn.
After Dudley’s unemployment compensation was denied, he enlisted plaintiffs to help him. Hohman, Kluemke, and Michael began weighing bags without Precision’s knowledge. They all found bags to be light. They then provided lot numbers and locations of underweight bags to Dudley, who, reported the underweight bags to the Illinois Department of Agriculture, Bureau of Weights and Measures (Department).
During the Department’s later inspection, Alcorn began his own investigation to discover which customers had complained. One of the lot numbers identified by inspectors was still at Precision’s facility, eliminating the possibility of a customer complaint. Alcorn concluded the complaint must have been made by an employee or former employee.
Alcorn called Kluemke and Michael into his office and told them that if an employee had turned information into the Department and if the company found out who it was, it would be “very job threatening.”
Hohman was later terminated for engaging in horseplay with a forklift, and in March of 2003, Precision’s corporate office decided to eliminate 22 positions. Alcorn testified he chose Michael for dismissal because he spent too much time standing around the docks talking, he needed a more diverse skill set, and he did not want to perform certain tasks. Alcorn chose Kluemke for layoff because he had a poor attitude, was a “ring leader,” and did not get along with some people.
Plaintiffs sued, alleging they were discharged in retaliation for reporting Precision to the State of Illinois for shipping underweight product.
The circuit court agreed with plaintiffs that the reporting of the underweight bags was a protected activity. The court concluded plaintiffs met their burden of establishing a prima facie case, finding that Precision discharged them within a short time after they reported the underweight bags to the Department.
The court, therefore, concluded a rebuttable presumption arose that Precision unlawfully discharged plaintiffs and, therefore, Precision was required to articulate a legitimate reason for plaintiffs’ discharge.
Precision’s reason for discharging Hohman was the forklift incident. The circuit court found that this was a legitimate, nondiscriminatory reason for the discharge and, further, that Hohman failed to prove the reason was pretextual.
Precision’s reason for discharging Michael and Kluemke was because of the reduction in force. The court found that this was a legitimate, nondiscriminatory reason and, that Michael and Kluemke had failed to prove the reason for their discharges was pretextual.
The appellate court, however, reversed and remanded. The appellate court’s analysis relied on the circuit court’s finding of a “causal nexus.” According to the appellate court, this finding essentially meant that the circuit court had determined that plaintiffs had proved the element of causation for their retaliatory discharge claim and that plaintiffs had, in fact, been discharged for participating in protected activity. Precision appealed to the Illinois Supreme Court.
According to the Supreme Court, while there is no precise definition of what constitutes clearly mandated public policy, retaliatory discharge actions have been allowed in two settings: where an employee is discharged for filing, or in anticipation of filing, a claim under the Illinois Workers’ Compensation Act (“IWCA”) or where an employee is discharged in retaliation for the reporting of illegal or improper conduct, otherwise known as “whistleblowing.”
To sustain a cause of action for retaliatory discharge, an employee must prove: (1) the employer discharged the employee, (2) the discharge was in retaliation for the employee’s activities, and (3) the discharge violated a clear mandate of public policy. When deciding the element of causation, the ultimate issue is the employer’s motive.
Precision contended that the appellate court improperly relieved plaintiffs of their burden to establish their case, and the Supreme Court agreed.
Where the employer chooses to come forward with a valid, nonpretextual basis for discharging its employees and the trier of fact believes it, the causation element required for proving a retaliatory discharge claim fails.
Here, the circuit court, as trier of fact, concluded that Precision presented reasons for plaintiffs’ discharges, which it found to be valid and legitimate. For that reason, it found plaintiffs failed to meet their burden of proving that they were discharged in retaliation for their protected activity.
The appellate court incorrectly ignored the circuit court’s ultimate determination that Precision presented valid, nonretaliatory, nonpretextual reasons for discharging plaintiffs. The Supreme Court concluded that plaintiffs failed to prove the element of causation and, therefore, the circuit court correctly determined plaintiffs failed to prove a cause of action for retaliatory discharge.
Even so, Plaintiffs maintained that Precision could have had legitimate reasons for their discharges, which the trier of fact believed, yet Precision could still remain liable because there can be more than one proximate cause in an action for retaliatory discharge. The Supreme Court, rejected this argument.
Retaliatory discharge claims are a narrow exception to the general rule that employees are at-will. Thus, if an employer comes forward with a valid, nonpretextual reason for an employee’s discharge and the trier of fact believes it, there can be no causation. Since the circuit court found Precision’s reasons for discharging plaintiffs to be valid and nonpretextual, plaintiffs did not prove the element of causation. The circuit court, although applying incorrect reasoning, properly entered judgment in favor of Precision. Wayne Michael v. Precision Alliance Group, LLC, 2014 IL 117376.
In the second case, FedEx employed Joenathan Stevenson as a package handler from February 2007 to January 2011. Stevenson was subject to a FedEx company policy that required immediate reporting of workplace injuries whether they required only minor first aid or professional medical treatment. In addition, FedEx policy required that employees wishing to seek professional medical treatment for a workplace injury first attempt to provide advance notice to management. Failure to notify management before seeking professional medical care could subject the employee to termination.
On January 6, 2011, Stevenson reported to supervisors that he was suffering from a sore back. FedEx generated a First Aid/Injury Report and placed Stevenson on light duty to accommodate his condition. He did not request or seek medical treatment at that time. After working light duty on January 7, 8, 10, 11, and 12, Stevenson sought medical treatment for his back on the morning of January 13. The physician assistant who examined him provided a “Certificate to Return to Work,” which cleared Stevenson to return to work on January 14 and also stated: “Please keep patient on light duty/off truck work until he can have a functional capacity eval done with physical therapy to see exactly what his limitations are.”
Stevenson began his next shift, and worked light duty. At the end of his shift, Stevenson presented the note from the PA, thereby notifying FedEx that he had already sought and received medical care for the January 6 incident. Citing the company policy that required advance notice before seeking medical treatment for a prior workplace in-jury, FedEx terminated Stevenson’s employment.
Stevenson brought a retaliatory discharge action in the Circuit Court of Cook County, Illinois. FedEx removed the action to federal court. FedEx moved for summary judgment, and Stevenson moved for judgment on the pleadings.
The parties agreed that Stevenson was a FedEx employee and that a causal relationship existed between Stevenson’s actions and his termination. They simply disagreed about whether his actions were protected.
The question presented was whether the IWCA grants employees the right to seek medical care for a prior workplace injury without first notifying the employer.
The court observed that nowhere in the IWCA is there a suggestion that employers may impose minor, or even de minimis, burdens on an employee’s right to seek medical treatment. Rather, the unqualified language of the statute states plainly that employers may not interfere “in any manner whatsoever” with an employee’s exercise of his rights. This unambiguous statutory text compelled the court to conclude that imposing even modest requirements as a precondition to seeking medical treatment is “interference” within the meaning of the IWCA.
Moreover, terminating employees who do not comply with additional restrictions runs afoul of the statutory provision forbidding the discharge of employees for exercising their rights.
FedEx offered several justifications for imposing its advance notice policy, but nothing in the IWCA suggests that “justifiable interference” with the employee’s right to seek medical treatment is permitted.
FedEx maintained that the advance notice policy was needed to ensure that FedEx does not allow employees to perform duties inconsistent with restrictions imposed by medical professionals, highlighting the fact that Stevenson worked a full shift before telling any supervisor that he had a note from the PA who examined him.
But advance notice that an employee was going to obtain treatment would not mitigate this concern; what FedEx needed is notice of the results of any medical treatment before the employee returns to work. Such results are not available before the employee seeks the treatment.
The court concluded that FedEx’s requirement that employees notify the company prior to seeking medical treatment for a workplace injury interfered with the right of employees to seek medical treatment for those injuries. Stevenson exercised his right to seek medical attention without employer interference, a right guaranteed by the IWCA. It was undisputed that FedEx terminated Stevenson’s employment because of his exercise of that right and therefore, the court concluded that Stevenson’s claim for retaliatory discharge was established as a matter of law. Stevenson v. FedEx Ground Package System, Inc., 2014 WL 4783053 (N.D. Ill.).