{ "id": 2574356, "name": "JAVIER MARIN, Plaintiff-Appellee, v. AMERICAN MEAT PACKING COMPANY, Defendant-Appellant", "name_abbreviation": "Marin v. American Meat Packing Co.", "decision_date": "1990-09-28", "docket_number": "No. 1\u201489\u20141908", "first_page": "302", "last_page": "312", "citations": [ { "type": "official", "cite": "204 Ill. App. 3d 302" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "447 N.E.2d 786", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ill. 2d 322", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111584 ], "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0322-01" ] }, { "cite": "415 N.E.2d 352", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "83 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473496 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/83/0375-01" ] }, { "cite": "1987 U. Ill. L. Rev. 183", "category": "journals:journal", "reporter": "U. Ill. L. 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App. 3d", "case_ids": [ 3116557 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0223-01" ] }, { "cite": "438 N.E.2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091790 ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0375-01" ] }, { "cite": "450 N.E.2d 1235", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 913", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3558816 ], "pin_cites": [ { "page": "921-23" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0913-01" ] }, { "cite": "533 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "178 Ill. App. 3d 169", "category": "reporters:state", "reporter": "Ill. 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AMERICAN MEAT PACKING COMPANY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nPlaintiff, Javier Marin, brought an action for retaliatory discharge against his employer, American Meat Packing Company (AMPAC), claiming he was fired for filing a claim under the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) (Act). A jury found AMPAC liable to Marin in the amount of $74,626.40 in compensatory and $75,000 in punitive damages.\nOn appeal, AMPAC argues, inter alia, that the circuit court erred in denying its motions for judgment notwithstanding the verdict and for a new trial, and in refusing to instruct the jury properly. We reverse and remand for a new trial.\nMarin started working at AMPAC, a hog slaughterhouse, in 1975, and was employed there continuously until September 3, 1981, except for a company layoff in 1976 and a work-related injury resulting in a two-week absence in 1978. His duties included butchering.\nOn September 3, 1981, Marin sprained his back while attempting to pick up some entrails that had fallen to the floor. The next day, his supervisor referred him to the Yards Industrial Clinic for treatment, which he visited five times during the next month. He was hospitalized by his doctor until November 2, 1981. On November 13, 1981, Marin filed a claim with the Industrial Commission and returned to work on December 3, 1981, with a doctor\u2019s certificate. He continued to work until December 8, 1981, when he reinjured his back, returned to the Yards Clinic, and was again hospitalized. Marin was discharged on January 16, 1982, and he returned to AMPAC two to three days later to pick up his compensation check from Cathleen Heffeman, AMPAC\u2019s industrial nurse. According to Marin, Heffernan stated, \u201cOh, Mr. Marin, you are at the hospital. Don\u2019t you think that the firm is spending enough money with you at the hospital[?]\u201d She then \u201cthrew\u201d the check at him in \u201canger.\u201d\nOn January 21, 1982, Marin saw Dr. S.P. Kaushal, who had him admitted to Edgewater Hospital the next day. Marin was discharged on February 2, 1982. Dr. Kaushal later recommended physical therapy treatment, to be commenced February 16.\nOn February 26, 1982, Marin received a certified letter from AMPAC, which he took to his attorney to read. The letter stated that his doctor had released him for return to work on February 16 and that he had not yet reported to work. Marin was informed that if he did not return by February 26, AMPAC would assume that he had voluntarily quit. Marin understood the letter. He averred that he was still under Dr. Kaushal\u2019s treatment on February 16 and was not released to work on that date nor was he given a return to work certificate, as required by company policy.\nDr. Kaushal gave Marin his return to work permit at Marin\u2019s office visit of March 1, 1982. Marin arrived at work the next day at 7:30 a.m. and gave the permit to Richard Bachert, the plant superintendent. Marin overheard Bachert tell the nurse, \u201cP]ook at this paper. This stupid doctor gives him light work.\u201d The nurse and superintendent then went into the nurse\u2019s office. When Bachert came out, he instructed Marin to wait in the cafeteria. Bachert then went into Clark\u2019s office, the company \u201cpresident.\u201d When Bachert came out of that office, he told Marin that Mr. Clark said that he no longer had a job. At the close of Marin\u2019s testimony, plaintiff rested. The court denied AMPAC\u2019s motion for a directed verdict.\nRichard Bachert was AMPAC\u2019s plant superintendent from August 1979 through May 1982. His responsibilities included the hiring and firing of personnel, as well as employee discipline. His superior was vice-president Larry Clark. Bachert spoke often with Marin, and the conversation was always in English. Bachert asked AMPAC\u2019s nurse to follow up on Marin\u2019s accident and health status on February 16. Marin\u2019s doctor told her that he had released Marin and he was supposed to be at work. The nurse also telephoned Marin\u2019s home and spoke with his wife, who told her that she would inform Marin of the situation. Bachert then sent Marin a certified letter stating that he was to report to work by February 26 or AMPAC would assume that he had voluntarily quit. The return receipt indicated that Marin received the letter on February 26.\nOn March 2, 1982, Marin reported for work with a doctor\u2019s permit and asked Bachert, \u201cDo I still have a job?\u201d Bachert said no, because Marin didn\u2019t do what *** [he was] supposed to do by the date *** [he was] supposed to do it.\u201d Clark\u2019s name was not mentioned during this conversation. Marin was not dressed in his normal work attire.\nCathleen Heffernan worked at AMPAC from November 1981 through January 1985. She corroborated Bachert\u2019s account of their February conversation. Heffernan phoned Dr. Kaushal\u2019s office and reported to Bachert that the doctor told her Marin\u2019s physical therapy had been scheduled for Wednesday evening so as not to interfere with work.\nOn March 2, 1982, Marin came into her office, presenting Dr. Kaushal\u2019s return to work permit. One of her duties at AMPAC was to distribute compensation checks. She had never seen Marin prior to March 2, 1982, and was unaware that he had filed a claim for workers\u2019 compensation with the Illinois Industrial Commission. She could not explain the discrepancy between the unrestricted work release that Dr. Kaushal told her about over the phone and the \u201clight work\u201d restriction on the pass Marin presented to her upon his return on March 2, 1982.\nFrank Dlugopolski, AMPAC\u2019s maintenance supervisor at the time of the incident, was in the lunchroom and overheard the exchange between Marin and Bachert. His testimony mirrored that of Bachert.\nFollowing closing arguments, the jury returned the verdict for Marin as noted above, finding that Marin did not abandon his employment. AMPAC filed post-trial motions for judgment n.o.v., for a new trial, and for remittitur on damages. On June 15, 1989, the circuit court denied AMPAC\u2019s motions for judgment n.o.v. and for a new trial, but granted its motion for remittitur, reducing the compensatory damages to $66,898.48, based on evidence that Marin would not have worked during a nine-month strike.\nI\nAMPAC initially argues that the circuit court erred in denying its motions for judgment n.o.v. and for a new trial because the evidence showed that AMPAC discharged Marin for nonretaliatory reasons and that all Marin\u2019s rights under the Act were observed.\nThe tort of retaliatory discharge recognized in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353 (Kelsay), is an exception to the general rule that \u201cat will\u201d employment is terminable at any time for any or no reason. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 128, 421 N.E.2d 876.) A strong public policy exists to insure the protection of workers covered by the Act; an employee may bring a civil tort action against an employer for discharging the employee for filing a claim under the Act. Kelsay, 74 Ill. 2d 172, 384 N.E.2d 353.\nTo establish a claim of retaliatory discharge, a plaintiff must show that (1) he was an employee of defendant before the injury; (2) he exercised a right granted by the Act; and (3) his discharge was causally related to the filing of a claim under the Act. (Slover v. Brown (1986), 140 Ill. App. 3d 618, 620, 488 N.E.2d 1103.) Causality does not exist if the reason for the discharge is valid and nonpretextual. (Slover v. Brown, 140 Ill. App. 3d at 621.) A pretext had been defined as \u201ca purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs.\u201d Wayne v. Exxon Coal USA, Inc. (1987), 157 Ill. App. 3d 514, 518, 510 N.E.2d 468.\nA judgment n.o.v. should only be entered in those cases where \u201call of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.\u201d Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.\nIn the case sub judice, in considering all the circumstances, it cannot be said that when all the evidence is viewed most favorably to Marin, it so overwhelmingly favors AMPAC that no verdict in Marin\u2019s favor could ever stand.\nThe record supports AMPAC\u2019s motion for a new trial, however. The standards relating to a judgment n.o.v. and to a motion for a new trial are different. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 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\u2019s findings are unreasonable, arbitrary and not based upon the evidence. (Anderson v. Beers (1979), 74 Ill. App. 3d 619, 393 N.E.2d 552.) On a motion for a new trial, the circuit court must determine whether the jury\u2019s verdict was against the manifest weight of the evidence. Mizowek v. De Franco, 64 Ill. 2d at 310.\nAt bar, Marin testified that he filed a workers\u2019 compensation claim in November 1981 and received benefits. He returned to work in December without incident. After reinjuring his back, and upon claiming a benefits check, AMPAC\u2019s nurse made a disparaging remark about his hospital bills and \u201cthrew\u201d his check at him-. Bachert then made the remark about Marin\u2019s light work restriction upon Marin\u2019s return. Marin, however, offered no evidence that AMPAC hired employees who had light work restrictions or treated those employees differently from other employees without such restriction. The minimal facts presented by Marin do not evince a retaliatory motive for discharge when viewed against the evidence presented by AMPAC.\nAMPAC\u2019s evidence revealed that the company attempted to restore Marin to active employment February 16. Upon learning from his doctor that Marin should have been back to work, AMPAC phoned Marin\u2019s home and told his wife that Marin was to report back to work. When he did not, the company then sent Marin a certified letter, giving him an extra 10 days to return. AMPAC\u2019s behavior does not suggest a discharge motivated by retaliation, but rather reflects just the opposite: the company\u2019s desire to bring Marin back to work. All AMPAC\u2019s witnesses corroborated Bachert\u2019s account of the events on February 16 and March 2, 1982. Bachert denied knowing about Marin\u2019s compensation claim, and Marin introduced no evidence to the contrary. Evidence that those responsible for plaintiff\u2019s termination knew he intended to file a workers\u2019 compensation claim is \u201cessential\u201d to a retaliatory discharge action. Mercil v. Federal Express Corp. (N.D. Ill. 1987), 664 F. Supp. 315, 318.\nHeffernan\u2019s alleged statements prove nothing as to this issue, since she was not a decision maker with respect to Marin\u2019s termination. (See Cannella v. Nationwide Carriers, Inc. (N.D. Ill. 1988), 687 F. Supp. 362, 365.) Nor can the statement be used to infer a retaliatory motive on the part of Bachert. Bachert\u2019s statement itself does not mention workers\u2019 compensation, nor does it reveal any form of threat or coercion against Marin for filing a claim. (Cf. Kelsay, 74 Ill. 2d at 179.) That an employer may discharge an employee at will for any reason or for no reason \u201cis still the law in Illinois, except when the discharge violates a clearly mandated public policy.\u201d (Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525, 478 N.E.2d 1354.) The causality element, therefore, requires more than a discharge in connection with filing a claim. Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 533 N.E.2d 1.\nAMPAC here controverted Marin\u2019s evidence by presenting its own, which demonstrated a valid, nonpretextual reason for discharging Marin. Marin\u2019s argument, that AMPAC\u2019s reason was pretextual and that the letter was a ploy, is unsupported by any evidence to that effect. Rather, Marin admitted that he received the letter on February 26, understood its implications, yet did nothing in response to it until March 2. The evidence showed that Marin was fired for not reporting to work on time as directed by his superiors. Under Illinois law, an employer may fire an employee for excessive absenteeism, even if the absenteeism is caused by an injury which is compensable under the Act. (Slover v. Brown, 140 Ill. App. 3d at 621.) The probative value of Marin\u2019s scant evidence is diminished when viewed in light of the testimony of AMPAC\u2019s employees and the letter it sent to Marin, which tended to show that the company was attempting to restore Marin to employment. Nothing in the record reveals that defendant interfered with, restrained, or coerced Marin in any manner regarding his exercise of the rights and remedies provided to him by the Act.\nThe record does reflect that Marin and AMPAC were at odds over his return to work date. The exchanges between AMPAC\u2019s employees and Marin, however, fall short of the causality needed for retaliatory discharge actions. The jury\u2019s verdict, therefore, was against the manifest weight of the evidence required to support a claim of retaliatory discharge. (See Bryce v. Johnson & Johnson (1983), 115 Ill. App. 3d 913, 921-23, 450 N.E.2d 1235.) Accordingly, reversal and a new trial is mandated.\nII\nA review of the instructions given reinforces the need for a new trial. AMPAC contends that the circuit court erred by refusing to instruct the jury not to substitute its judgment for AMPAC\u2019s business judgment regarding its leave of absence policies. The court refused to give AMPAC\u2019s non-Illinois Pattern Instructions (IPI) instruction 14 because Marin\u2019s \u201cissues instruction tells them what the issue is.\u201d Marin asserts that the court correctly refused the proffered instruction because it was argumentative and based on an abstract theory.\nSupreme Court Rule 239 (107 Ill. 2d R. 239) governs the giving of non-IPI instructions. The IPI instructions, which were devised for a court to instruct a jury on the law in an impartial and non-argumentative manner, shall be used unless the court determines that they do not accurately state the law. (107 Ill. 2d R. 239; Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375, 438 N.E.2d 152.) Non-IPI instructions should not be used if the IPI instructions correctly and adequately state the law. (Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 419 N.E.2d 1253.) Each party, however, has the right to have the jury instructed on its theory of the case, and the circuit court, in the exercise of. its discretion, must instruct the jury on all issues which it finds have been raised by the evidence presented. (Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745, 751, 464 N. E.2d 866.) A new trial should be granted where a party shows that its right to a fair trial has been seriously prejudiced by the denial of an instruction. Thompson v. Abbott Laboratories (1990), 193 Ill. App. 3d 188, 202, 549 N.E.2d 1295.\nIn light of these principles, the circuit court erred by not instructing the jury with AMPAC\u2019s proposed non-IPI instruction. AM-PAC\u2019s theory of the case was that Marin was discharged upon returning to work four days past the date he was told to report by his superior; its reason for the discharge was not retaliation, but Marin\u2019s disregard of its return to work policy.\nAMPAC\u2019s instruction is very similar to an instruction cited with approval in Thompson v. Abbott Laboratories (193 Ill. App. 3d at 203). There, plaintiff tendered a \u201cmixed motive\u201d for discharge instruction, which was refused. In affirming the refusal, the appellate court noted that defendant\u2019s instructions applied the appropriate legal standard in Illinois for retaliatory discharge cases. (Thompson v. Abbott Laboratories, 193 Ill. App. 3d at 203.) One of defendant\u2019s instructions stated that if the jury found the discharge was not motivated by plaintiff\u2019s pursuit of rights under the Act, the element of causality was not satisfied \u201ceven if the discharge was unfair, unwise, or otherwise improper.\u201d (Thompson v. Abbott Laboratories, 193 Ill. App. 3d at 208 (Reinhard, J., concurring).) This instruction, when coupled with the issues instruction given, \u201crequire[d] the jury to determine the true reason for the discharge, either plaintiff\u2019s absenteeism or her filing of a worker\u2019s compensation claim, [and is] consistent with Illinois law requiring her to establish causality. Such an approach allows the jury, as the trier of fact, to decide what the true reason was for plaintiff\u2019s discharge.\u201d Thompson v. Abbott Laboratories, 193 Ill. App. 3d at 209 (Reinhard, J., concurring).\nAs previously noted, an employer may discharge an employee at will for any or no reason except when the discharge violates a clearly mandated public policy, and causality does not exist \u201cif the basis for discharge is valid and nonpretextual.\u201d (Slover v. Brown, 140 Ill. App. 3d at 621.) Since the employer\u2019s motive in firing the employee is the ultimate issue to be decided (Austin v. St. Joseph Hospital (1989), 187 Ill. App. 3d 891, 897, 543 N.E.2d 932), AMPAC\u2019s instruction would have allowed the jury to decide whether plaintiff disobeyed reasonable orders and was terminated for good cause. See Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 812, 537 N.E.2d 1348, appeal denied (1989), 127 Ill. 2d 620, 545 N.E.2d 114.\nAlthough an employee may be discharged without good cause, that in itself cannot justify relief under the tort of retaliatory discharge (Horton v. Miller Chemical Co. (7th Cir. 1985), 776 F.2d 1351, 1359 (applying Illinois law)), since the employer must also impede a public policy when discharging the employee. (Kelsay, 74 Ill. 2d at 181; Palmateer v. International Harvester Co., 85 Ill. 2d at 131; Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 667-68, 384 N.E.2d 91; see also Note, Good Faith & Fair Dealing in Illinois: An Application in the Employment Context, 1987 U. Ill. L. Rev. 183, 205-06.) AMPAC presented evidence in support of its theory that, at most, it was guilty of harshly discharging Marin, who returned to work four days late. Its proffered instruction \u201cstrikes the appropriate balance between an employee\u2019s right not to be fired in contravention of a clearly mandated public policy and an employer\u2019s right to discharge an employee at will for any reason or no reason.\u201d (Thompson v. Abbott Laboratories, 193 Ill. App. 3d at 209 (Reinhard, J., concurring).) AMPAC, therefore, should have been allowed to instruct the jury not to determine whether AMPAC acted fairly, but rather, to determine whether the decision to terminate Marin was in retaliation for filing a workers\u2019 compensation claim.\nAMPAC further argues that the circuit court erred in refusing to give the jury its instruction 16, which advised the jury not to award Marin damages for any injury received during his employment. In Kelsay, the supreme court noted that the Act was meant to limit recovery by employees to the extent provided by the Act in regard to work-related injuries, but was not intended to insulate the employer from independent tort actions. (Kelsay, 74 Ill. 2d at 184.) The extent and permanency of an employee\u2019s medical disability are to be decided by the Industrial Commission. (Garrison v. Industrial Comm\u2019n (1980), 83 Ill. 2d 375, 415 N.E.2d 352.) An allegation of retaliatory discharge is an independent proceeding which cannot be combined in a workers\u2019 compensation action. (Garrison v. Industrial Comm\u2019n, 83 Ill. 2d 375, 415 N.E.2d 352.) \u201c[T]he Act [itself] provides that the statutory remedies under it shall serve as the employee\u2019s exclusive remedy if he sustains a compensable injury.\u201d (Emphasis added.) Sharp v. Gallagher (1983), 95 Ill. 2d 322, 326, 447 N.E.2d 786.\nMarin argues that the given damage instruction, which fixed the dates for damages as March 2, 1982, up until the date of trial, adequately instructed the jury not to award damages for the work-related injury. The jury, however, heard testimony from Marin regarding his injury \u2014 including the fact that he was hospitalized three times for fairly long periods of time, saw several doctors and needed physical therapy three times a week. Given the nature of Marin\u2019s testimony and the circumstances surrounding his separation from AMPAC, such an instruction is warranted because it clearly informs the jury to reward only for damages incurred as a result of the alleged retaliatory discharge. AMPAC\u2019s instruction, therefore, was supported by Illinois law and would have allowed AMPAC to present its theory of the case to the jury. The circuit court erred in refusing this instruction as well.\nFor the aforesaid reasons, the judgment of the circuit court must be reversed and the cause remanded for further proceedings consistent with this opinion. Other issues raised need not be considered in light of our disposition of this appeal.\nReversed and remanded.\nDiVITO, P.J., and BILANDIC, J., concur.\nDefendant\u2019s instruction 14 states:\n\u201cIt is not your role to determine whether Defendant acted wisely or fairly with respect to Plaintiff\u2019s separation from employment. Put another way, the jury is not to determine whether Defendant exercised good business j'udgment or whether its methods were sound. You are only to determine whether Plaintiff was discharged and whether the discharge was in retaliation for exercising rights or remedies granted to him by the Workers\u2019 Compensation Act.\u201d", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "McDermott, Will & Emery, of Chicago (Stephen Erf, Nancy Ross and Jennifer Walz, of counsel), for appellant.", "Robert H. Hanaford, Ltd., of Chicago (Robert Hanaford and Ken Del Valle, of counsel), for appellee." ], "corrections": "", "head_matter": "JAVIER MARIN, Plaintiff-Appellee, v. AMERICAN MEAT PACKING COMPANY, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1 \u2014 89\u20141908\nOpinion filed September 28, 1990.\nMcDermott, Will & Emery, of Chicago (Stephen Erf, Nancy Ross and Jennifer Walz, of counsel), for appellant.\nRobert H. Hanaford, Ltd., of Chicago (Robert Hanaford and Ken Del Valle, of counsel), for appellee." }, "file_name": "0302-01", "first_page_order": 324, "last_page_order": 334 }