SECOND DIVISION

March 25, 2003

JUSTICE CAHILL delivered the opinion of the court:

Our ruling addresses two issues: (1) whether an employee who testifies on behalf of acoworker in a workers' compensation hearing may pursue a retaliatory discharge claim if he canprove his discharge is causally related to his participation in the hearing; and (2) whether anemployee who repeats an employer's remarks that may relate to a motive for plaintiffs' dischargeare admissible as admissions by the employer.

Plaintiffs Alan and Tim Pietruszynski were laborers employed by defendant the McClierCorporation, Architects and Engineers, Inc. (McClier). Their brother Scott was also employed byMcClier. Scott filed a workers' compensation claim for injuries sustained in a constructionaccident on a McClier jobsite. Plaintiffs were subpoenaed to testify at the workers' compensationhearing. Plaintiffs were laid off one month after testifying. They then filed a complaint againstMcClier, alleging retaliatory discharge.

Tim testified in a deposition that he was hired as a laborer by McClier in 1998. Tim saidhe secured a job with McClier because he was friends with Dan Svoboda, McClier's highestranking superintendent. Tim was assigned to a project at the Sun-Times newspaper building. The project was expected to be completed in June 1999. Scott, also assigned to the Sun-Timesproject, was injured in a scaffold accident at the site in January 1999. Tim did not witness theaccident but was in the area where Scott fell. Tim was reassigned to another project the day afterthe accident. Manny Juarez, Mike Smagur and Ed Bogacki were Tim's supervisors on thatproject. Tim knew that the project would end soon. Tim expected to be transferred to anotherproject based on Svoboda's comment that he needed Tim at another site.

Tim received a subpoena to testify in Scott's workers' compensation hearing in April1999. The hearing was continued and finally conducted in May 1999. Tim told his supervisorsthat he was leaving to testify on the day of the hearing. Juarez shook his head and told Tim thathe and his brother Alan "are [expletive deleted] yourselves." Tim said this comment was madein Smagur's and Bogacki's presence. Tom Corning, McClier's chief operating officer, had beentold that Tim and Alan would need time off to testify. Tim testified that Svoboda later admittedthat Corning said that Tim and Alan had testified favorably on their brother's behalf.

Tim testified that on Friday June 18, 1999, the project was not completed. He expectedto return to the site on Monday June 21, 1999. Svoboda told Tim that he would see him onMonday. Tim saw Svoboda during the weekend of June 19-20. Svoboda told Tim that JerryStrom, the project manager, had told Svoboda not to let Tim return to the jobsite on June 21. Strom also had told Svoboda not to let Tim report to the DuPage jobsite. Tim testified thatSvoboda had been told by Corning that "there is not going to be a Pietruszynski working forMcClier." Tim asked to be assigned to other McClier projects but was told there were noavailable positions.

Alan testified that he was hired by McClier through his brother Scott in September 1998. Alan's part-time employment became full time in November 1998. Alan was working at the Sun-Times project in 1999 when his brother Scott was injured in a scaffolding accident. Alan wastransferred to another project the day after the accident. Alan testified that he knew that projectwould be ending in June. Alan testified that Svoboda told him he would be assigned to a projectin Sterling, Illinois.

Alan received a subpoena to testify at Scott's workers' compensation hearing. Alantestified that Juarez told him and Tim that they were "[expletive deleted] themselves" the daythey left work to testify at the hearing. Alan testified that his last day of work with McClier wasJune 18, 1999. He was never assigned to the Sterling project or another McClier project.

Tom Corning testified and denied that he told superintendents not to hire plaintiffs. Corning testified that he was not usually involved in layoff decisions, but he conceded that hehad been involved in laying off plaintiffs. Corning said that the only reason plaintiffs were notassigned to other projects was because of a lack of work. McClier records submitted as exhibitsduring Corning's deposition show that laborers were hired for both the DuPage and Sterlingprojects. Records also show that the number of laborer hours increased in June 1999, whenplaintiffs were laid off.

Dan Svoboda testified and admitted that he promised Tim he would hire him for theDuPage project as soon as a need for labor arose. Svoboda testified that Tim became impatientand chose to sue McClier instead. Svoboda conceded that he did hire a friend for part-time labor. Svoboda explained that he hired his friend instead of Tim for personal reasons. Svoboda alsodenied telling Alan that he would be assigned to the Sterling project. Svoboda explained that hewas not the superintendent of the Sterling project and had no authority to make hiring decisionsfor that project. Svoboda also denied that either Corning or Strom told him not to hire eitherplaintiff.

Manny Juarez testified and denied telling plaintiffs they were "[expletive deleted]themselves" when plaintiffs left to testify. Juarez said he did not care that plaintiffs weretestifying since the matter did not concern him.

McClier filed a motion for summary judgment, arguing that plaintiffs failed to establish aprima facie case of retaliatory discharge. McClier contended that Svoboda's statements,repeating what he had allegedly been told by McClier supervisors, were inadmissible as doublehearsay and that plaintiffs' self-serving testimony alone could not support a retaliatory dischargeclaim. The trial court agreed and found that the statements were inadmissible hearsay. The trialcourt also found unreliable plaintiffs' testimony about Juarez's statement that plaintiffs were"[expletive deleted] themselves" by testifying for their brother. The trial court entered summaryjudgment for defendant.

Plaintiffs argue on appeal that the trial court erred in finding Svoboda's statements werehearsay, in making credibility determinations at the summary judgment stage, and failing toconsider the timing of plaintiffs' discharge, 29 days after they testified for their brother.

We review a grant of summary judgment de novo. Espinoza v. Elgin, Joliet & Eastern Ry.Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995). Summary judgment is not proper where thereis an issue of material fact. Sollami v. Eaton, 201 Ill. 2d 1, 6-7, 772 N.E.2d 215 (2002). Anissue of fact is material if it has legal probative force as to the controlling issue. First of AmericaBank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 178, 651 N.E.2d 1105 (1995). We firstconsider a threshold issue mentioned in passing by defendant, relating to plaintiffs' ability topursue a retaliatory discharge claim under these facts. The issue is referenced in a footnote:

"The plaintiffs assume, without reference to any legal authority, that theirtestimony at a fellow employee's workers['] compensation hearing was a protectedactivity. However, while courts have held that filing one's own worker'scompensation claim is a protected activity, no Illinois court has held that testifyingin someone else's worker's compensation case is a protected activity."

Plaintiffs responded with a footnote of their own:

"While Defendant implies that Plaintiffs may not have engaged inprotected activity since they did not testify at their own worker's compensationhearing, how could this not be protected activity? As the two Plaintiffs and thePetitioner in the workers' compensation case were brothers and worked for thesame employer, legally, there is no distinction than the traditional scenario wherethe Plaintiff brings his own retaliatory discharge case. See, e.g. Bea v. BethanyHome, Inc., 333 Ill. App. 3d [410], 775 N.E.2d 621 (2002) (upholding cause ofaction for retaliatory discharge where plaintiff was discharged for his anticipatedtestimony at a DCFS hearing with regards to allegation of child abuse inderogation of Abused and Neglected Children Reporting Act.)" (Emphasis inoriginal.)

Plaintiffs' citation to Bea aside, whether plaintiffs engaged in protected activity here is anissue of first impression in Illinois. Bea is analogous, but not on point. In Bea, we consideredwhether the plaintiff's discharge violated the public policy expressed in the Abused andNeglected Child Reporting Act (325 ILCS 5/9.1 (West 2000)). Bea, 333 Ill. App. 3d at 414. Ouranalysis applied the test set out in Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 478 N.E.2d 1354(1985). This test requires us to determine what public policy underlies the particular statutoryprovision to decide whether a plaintiff's discharge violated that policy. Barr, 106 Ill. 2d at 527. No Illinois court has yet considered whether discharging an employee for testifying in anotheremployee's workers' compensation hearing violates the public policy expressed in the Workers'Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2000)). Our research reveals thatother states have addressed this issue by defining "protected activity" under their workers'compensation acts to include testifying in a proceeding, in addition to filing or pursuing a claim. See Ohio Rev. Code Ann.