Clark v. Owens-Brockway Glass Container
State: Illinois
Court: 5th District Appellate
Docket No: 5-96-0676
Case Date: 07/16/1998
July 16, 1998
NO. 5-96-0676
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
GLORIA R. CLARK, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 92-L-596
)
OWENS-BROCKWAY GLASS CONTAINER, INC., ) Honorable
) Phillip J. Kardis,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
JUSTICE MAAG delivered the opinion of the court:
The plaintiff, Gloria Clark, is a former employee of the
defendant, Owens-Brockway Glass Container, Inc. (Owens-Brockway).
Clark brought an action to recover damages for retaliatory
discharge. On cross-motions for summary judgment, the trial court
granted summary judgment in favor of Clark on the issue of
liability. A jury trial on the issue of damages resulted in Clark
being awarded more than $150,000. Following the denial of its
posttrial motion, Owens-Brockway appealed.
Clark worked at Owens-Brockway from June 1989 until June 1992.
She performed various kinds of unskilled labor and was paid
approximately $11 per hour.
On March 3, 1992, she injured her back at work. She began
treatment with her family physician, Dr. Hoelscher, on March 6,
1992. Dr. Hoelscher ordered her off work. On March 11, 1992,
Clark was examined by Owens-Brockway's physician, Dr. Burch. Dr.
Burch agreed with Dr. Hoelscher's orders. On March 13, 1992,
Owens-Brockway began paying temporary total disability (TTD)
payments to Clark.
While off work, Clark participated in a physical therapy/work-
hardening program as prescribed by Dr. Hoelscher. Later, Dr.
Hoelscher referred Clark to Dr. Johnson, an orthopedic surgeon.
Clark continued the physical therapy/work-hardening program. The
program was intended to rehabilitate Clark and facilitate her
return to work at Owens-Brockway.
Owens-Brockway suspected that Clark was malingering. It hired
an investigator to monitor Clark's daily activities, and on May 22,
1992, the investigator videotaped Clark mowing her lawn.
On May 24, 1992, David Bailey, the industrial relations
director for Owens-Brockway, reviewed the surveillance tape. By
letter dated June 1, 1992, Bailey informed Clark that she was
suspended pending termination for "frudulent [sic]
misrepresentation and conduct" in connection with her claims for
workers' compensation. On June 3, 1992, a discharge hearing was
held and Clark was fired. Clark then filed this action alleging
retaliatory discharge against "Owens-Illinois, Inc."
Owens-Brockway first contends that the trial court erred in
denying summary judgment in its favor. Owens-Brockway claims that
the trial court incorrectly believed that it was required to rule
in favor of one party or the other because both parties filed
motions for summary judgment. Apparently, the court believed that
by filing cross-motions for summary judgment the parties were in
effect agreeing that no genuine issue of material fact existed.
Owens-Brockway is correct in its contention that "the mere filing
of cross-motions does not compel the court to grant summary
judgment in favor of one party or the other." Estate of Blakely v.
Federal Kemper Life Assurance Co., 267 Ill. App. 3d 100, 109, 640
N.E.2d 961, 968 (1994). However, we are not bound by the trial
court's reasoning and may rely upon any ground present in the
record to sustain the trial court's decision. Estate of Blakely,
267 Ill. App. 3d at 109, 640 N.E.2d at 968, citing Bell v.
Louisville & Nashville R.R. Co., 106 Ill. 2d 135, 148, 478 N.E.2d
384 (1985).
The facts of this case amply demonstrate an issue in every
workers' compensation case, i.e., the nature and extent of the
injury. Owens-Brockway argues that if it had an honestly held
belief that Clark lied about or exaggerated her injuries, it has a
valid, permissible basis for the discharge. It argues that if it
believes that an employee has lied or committed fraud, such belief
is sufficient to immunize an employer from liability for wrongful
discharge. Wayne v. Exxon Coal USA, Inc., 157 Ill. App. 3d 514,
518, 510 N.E.2d 468, 471 (1987), is cited in support.
It is well settled in Illinois that, generally speaking, an
at-will employee can be discharged for any reason or no reason at
all. One of the exceptions to the general rule is a discharge in
retaliation for filing a workers' compensation claim. Kelsay v.
Motorola, Inc., 74 Ill. 2d 172, 181, 384 N.E.2d 353, 357 (1978).
In such a case, the employer's otherwise absolute right to
terminate an at-will employee is curtailed. Kelsay, 74 Ill. 2d at
181, 384 N.E.2d at 357.
To recover for retaliatory discharge, a claimant must show
that (1) he or she was an employee of the defendant before or at
the time of the injury, (2) he or she exercised some right granted
by the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq.
(West 1994)), and (3) his or her discharge was causally related to
the exercise of rights under the Act. Slover v. Brown, 140 Ill.
App. 3d 618, 620, 488 N.E.2d 1103, 1105 (1986). In the case at
bar, both parties agree that Clark was an employee of Owens-
Brockway at the time of the injury and that she exercised her right
to benefits under the Act. The parties disagree as to whether her
discharge was causally related to the exercise of her rights under
the Act. This focuses our attention to a discussion of causation.
"Cause" is defined as "[s]omething that precedes and brings
about an effect or a result." Black's Law Dictionary 221 (6th ed.
1990). "Related" is defined as "connected". Black's Law
Dictionary 1288 (6th ed. 1990). The undisputed fact is that Clark
filed for and was collecting workers' compensation benefits prior
to her discharge. The undisputed fact is that she was discharged
because her employer believed that her claim for benefits was
exaggerated. Her employer admits that her discharge was connected
to her workers' compensation filing and her collection of benefits
since Bailey, the industrial relations director, thought she was
malingering and collecting benefits to which she was not entitled.
He used this as a basis to claim she was guilty of fraudulent acts
justifying the termination of her employment. Therefore, her
discharge was, as a matter of law, "causally related" to the filing
of a claim under the Workers' Compensation Act. "`When a first
cause produces a second cause that produces a result, the first
cause is the cause of that result.'" Bocian v. Industrial Comm'n,
282 Ill. App. 3d 519, 527, 668 N.E.2d 1, 6 (1996), quoting Harper
v. Industrial Comm'n, 24 Ill. 2d 103, 109, 180 N.E.2d 480 (1962).
The entry of summary judgment in favor of Clark was proper because
her discharge was directly and proximately related to her claim for
benefits. This does not mean that an employer may never discharge
an employee who has filed for benefits under the Act. An employer
may discharge an injured employee who has filed a workers'
compensation claim as long as the reason for the discharge is
wholly unrelated to the employee's claim for benefits under the
Workers' Compensation Act. Given the undisputed facts of this
case, the trial court was correct in granting summary judgment in
favor of Clark.
This decision is in harmony with both Hartlein v. Illinois
Power Co., 151 Ill. 2d 142, 601 N.E.2d 720 (1992), and our previous
decision in Wayne v. Exxon Coal U.S.A., Inc., 157 Ill. App. 3d 514,
510 N.E.2d 468 (1987). Hartlein is clear on the point that "`it is
*** the request for benefits that state law puts off limits ***.'"
Hartlein, 151 Ill. 2d at 160, 601 N.E.2d at 728, quoting McEwen v.
Delta Air Lines, Inc., 919 F.2d 58, 60 (7th Cir. 1990). This rule
prohibits an employer from discharging an employee in retaliation
for making a claim. In the case at bar, plaintiff's claim is
precisely what caused defendant to discharge the plaintiff. While
an employer may discharge an employee claiming benefits for a valid
and nonpretextual reason, a dispute about the nature and extent of
the injury does not constitute such a valid reason. Wayne is
distinguishable from the instant case. Wayne involved "bogus
doctor's slips" and outright lies by the employee. Wayne, 157 Ill.
App. 3d at 517-18, 510 N.E.2d at 470-71. That is vastly different
from a simple dispute about the nature and extent of the injury.
If the employer's position was adopted, the rule announced in
Kelsay would cease to exist. In nearly every case the employer
believes that the employee is exaggerating the claim. If this
belief justified discharge, no workers' compensation claimant could
ever make a claim without risking discharge.
We wish to be clear on this point. An employer may not
discharge an employee on the basis of a dispute about the extent or
duration of a compensable injury. An employer that fails to heed
this rule subjects itself to a retaliatory discharge action under
Kelsay.
Owens-Brockway next contends that the trial court made
erroneous evidentiary rulings during the trial on damages. It
first claims that the court erred in allowing evidence of Clark's
financial situation. Owens-Brockway relies on Rush v. Hamdy, 255
Ill. App. 3d 352, 627 N.E.2d 1119 (1993), to support this
contention.
Rush was a medical malpractice action where it was implied
during closing arguments that the doctor had no malpractice
insurance and would be personally liable for any judgment rendered
against him. Rush, 255 Ill. App. 3d at 360, 627 N.E.2d at 1124.
On appeal, the court held that this evidence was not relevant to
the issue of negligence. Its only purpose was to appeal to the
sympathy of the jury, and it should not have been allowed. Rush,
255 Ill. App. 3d at 359, 627 N.E.2d at 1124.
In the present case, Clark was seeking money damages for
emotional distress caused by losing her job. Part of the emotional
distress was allegedly caused by the financial hardship involved in
losing her job. The trial court correctly ruled that Clark's
financial condition subsequent to her discharge was relevant to
prove the emotional damages proximately resulting. We find no
abuse of discretion in admitting the evidence.
Owens-Brockway claims also that it was not able to effectively
cross-examine Clark because it was denied discovery of three pages
of documents that it alleges Clark used to prepare for trial.
Clark claims, and the trial court ruled, that the notes which
Owens-Brockway requested disclosure of were actually her counsel's
notes, written by counsel, and were thereby protected by the work-
product doctrine (166 Ill. 2d R. 201(b)(2)). The three pages of
notes were not made a part of the record, so we cannot review them.
Owens-Brockway "must shoulder the burden of providing the reviewing
court with a sufficient *** record ***." People v. Cranford, 119
Ill. App. 3d 226, 231, 456 N.E.2d 610, 614 (1983), citing
Teitelbaum v. Reliable Welding Co., 106 Ill. App. 3d 651, 435
N.E.2d 852 (1982). We must presume that the trial court ruled
correctly, given the state of the record. Cranford, 119 Ill. App.
3d at 231, 456 N.E.2d at 614.
Owens-Brockway next claims that the court erred when it barred
evidence of Clark's alleged failure to mitigate damages during the
period prior to August 17, 1992, the date Dr. Johnson released her
to resume work. Owens-Brockway claims this was error because if
Clark had looked for employment prior to her medical release, but
after being discharged, she may have been able to find employment,
thus mitigating the alleged emotional distress.
In support of this claim, Owens-Brockway offered a videotape,
recorded on May 22, 1992, showing Clark mowing her lawn. It is
claimed that the tape is relevant evidence of Clark's ability to
return to work prior to August 17. The trial court excluded the
videotape. Whether to admit the videotape or not rested within the
sound discretion of the trial court, and its exercise of that
discretion will not be reversed absent an abuse. Reid v. Sledge,
224 Ill. App. 3d 817, 821, 587 N.E.2d 1156, 1160 (1992); Carney v.
Smith, 240 Ill. App. 3d 650, 656, 608 N.E.2d 379, 383 (1992).
"It is well established in Illinois that films and videotapes,
when properly authenticated and relevant, are admissible as
demonstrative evidence." Carney, 240 Ill. App. 3d at 656, 608
N.E.2d at 383. Owens-Brockway claims that the videotape is
relevant to Clark's claim for emotional distress because it tends
to show that she was capable of working as early as May 22, 1992,
and had she found employment she would not have suffered the
financial hardship that caused her emotional distress. A review of
the tape shows Clark following what appears to be a self-propelled
mower. Occasionally she bends to pick up objects, such as a garden
hose. The flaw in the argument made by Owens-Brockway lies in the
fact that it is not the role of the employer, the circuit court,
the jury, or this court to determine when Clark was able to return
to work. The determination of the extent or duration of an
employee's injury or disability is a question of fact for the
Industrial Commission. Amoco Oil Co. v. Industrial Comm'n, 218
Ill. App. 3d 737, 748, 578 N.E.2d 1043, 1051 (1991). If Bailey
wanted to challenge Clark's workers' compensation claim, or the
extent of her injury, the correct route would have been through the
Industrial Commission. The videotape was irrelevant.
Owens-Brockway next contends that the trial court erred in
refusing to submit to the jury a special interrogatory that it
tendered. The special interrogatory is not part of the record.
The special interrogatory is not quoted anywhere in the record. As
stated above, the appellant has the burden of supplying an adequate
record to the reviewing court. The issue is waived.
Owens-Brockway's next argument is that the verdict was
excessive. It is an axiomatic that the amount of damages awarded
lies within the sound discretion of the jury. Knecht v. Radiac
Abrasives, Inc., 219 Ill. App. 3d 979, 983, 579 N.E.2d 1248, 1251
(1991). A reviewing court will not substitute its judgment for
that of a jury unless the award is so large as to shock the
conscience of the court or is outside the limit of fair and
reasonable compensation. Pry v. Alton & Southern Ry. Co., 233 Ill.
App. 3d 197, 219, 598 N.E.2d 484, 500 (1992).
Owens-Brockway complains that the jury's verdict for future
lost income was too speculative because it covers a 16-year period.
Clark offered evidence showing her basis for requesting 16 years'
worth of future lost income. Furthermore, she offered an economist
who testified about how the amount was calculated for the 16-year
period. We find the jury's award for future earnings to be
supported by the evidence. Plaintiffs who prove retaliatory
discharge are entitled to seek and receive those damages supported
by the evidence and the law, as are plaintiffs in other tort
actions. Kritzen v. Flender Corp., 226 Ill. App. 3d 541, 557, 589
N.E.2d 909, 921 (1992), citing Sloan v. Jasper County Community
Unit School Dist. No. 1, 167 Ill. App. 3d 867, 870, 522 N.E.2d 334
(1988). It is for the trier of fact to determine appropriate,
reasonable compensation. We believe that the award is supported by
the evidence and the law.
Owens-Brockway next claims that there was insufficient
evidence to support damages for emotional distress. This claim is
premised on the fact that Clark's testimony was the only evidence
offered on the issue of emotional distress. The existence or
nonexistence of medical testimony goes to the weight of the
evidence but does not prevent this issue from being submitted to
the jury. Corgan v. Muehling, 143 Ill. 2d 296, 312, 574 N.E.2d
602, 609 (1991). Expert, or medical, testimony is not needed to
prove things that are common knowledge. Any average, reasonable
person can readily evaluate a claim of emotional distress alleged
to result from a discharge and loss of earnings. After hearing
Clark's testimony that her utilities were turned off and that she
was forced to seek community help to feed her family, a jury could
reasonably conclude that she suffered emotional distress.
Owens-Brockway's final contention is that the trial court
erred in allowing Clark to amend the name of the party defendant
from Owens-Illinois to Owens-Brockway on the eve of the jury trial
for damages. This contention is without merit. "[W]here the real
party in interest and the one intended to be sued is actually
served with process in the cause, even though under the wrong name,
*** if he *** appears and files an answer, he will be concluded by
the judgment or decree as if he were described by his true name."
Fitzpatrick v. Pitcairn, 371 Ill. 203, 208, 20 N.E.2d 280, 282
(1939). In this case, Clark intended to sue her employer, a
company formerly known as Owens-Illinois but now known as Owens-
Brockway. Owens-Brockway was actually served with process. Owens-
Brockway filed an answer and participated in pretrial matters
without raising the issue of its correct name. The use of "Owens-
Illinois" in the complaint was simply a misnomer and was not a case
of mistaken identity as Owens-Brockway asserts. The trial court
did not err in allowing Clark to correct the misnomer shortly
before the trial on damages. "[The] [m]isnomer of a party is not
a ground for dismissal[,] but the name of a party may be corrected
at any time, before or after judgment, on motion, upon any terms
and proof as the court requires." 735 ILCS 5/2-401(b) (West 1994).
We find no abuse of discretion in the court's action allowing the
amendment.
For the foregoing reasons, the judgment of the Circuit Court
of Madison County is affirmed.
Affirmed.
KUEHN and GOLDENHERSH, JJ., concur.
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