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06/17/87 Marvin Wayne, v. Exxon Coal Usa

June 17, 1987

MARVIN WAYNE, PLAINTIFF-APPELLEE

v.

EXXON COAL USA, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

510 N.E.2d 468, 157 Ill. App. 3d 514, 109 Ill. Dec. 600 1987.IL.836

Appeal from the Circuit Court of St. Clair County; the Hon. Milton S. Wharton, Judge, presiding.

APPELLATE Judges:

JUSTICE WELCH delivered the opinion of the court. KARNS, P.J.,1 and HARRISON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

Plaintiff Marvin Wayne brought this action in the circuit court of St. Clair County alleging he was wrongfully discharged by his employer, Monterey Coal Company (Monterey), a division of Exxon Coal USA, Inc., in retaliation for filing a claim for compensation under the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.). After a bench trial, the court found defendant liable to plaintiff in the amount of $801,716, divided evenly between compensatory and exemplary damages. Defendant appeals. There is no cross-appeal. We reverse.

Plaintiff was employed by Monterey from April 21, 1980, until his discharge in December of 1981 and was a member of the United Mine Workers of America (the union). His employment was governed by the National Bituminous Coal Wage Agreement of 1981 (the contract), which, inter alia, provided Monterey could not discharge an employee except for "just cause" and provided a grievance procedure (ultimately including binding arbitration) through which an employee could challenge his discharge. The contract also provided that just cause included any absence of two or more consecutive days without consent of the employer or proof of illness. The contract further provided that where management concluded an employee's conduct justified discharge, the employee "shall" be suspended with intent to discharge and "shall" be given written notice stating the reason.

Plaintiff missed six consecutive work days commencing September 15, 1980. Upon his return to work on September 23, plaintiff presented a medical excuse from Dr. Rene St. Leger as justification for his absence. Plaintiff admitted at trial that he was never a patient of Dr. St. Leger. Between September 15, 1980, and March 26, 1981, plaintiff submitted 10 such slips from Dr. St. Leger to justify approximately 81 days of absence. The longest absence covered by one slip was 20 consecutive days. Plaintiff admitted at trial that he knew he was wrong in submitting the bogus excuses and would be fired if caught. He was examined and testified:

"Q. You are saying that you knew that sooner or later when they caught up with you about those doctor's slips, you would be fired?

A. Yes, and if they fired me for those doctor's statements while I was at work, I had nothing coming. I was wrong . . ..

Q. . . . [If] you had gotten back to work after your injury without ever receiving the letter of December the 1st, would you have thought you were back at work without running the risk of being fired if they found out about these doctor's slips?

A. No.

Q. You would still have felt you were under a risk?

A. If I had been back at work off of sick leave and they would have fired me, they would ...


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