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03/29/89 Thomas Netzel, v. United Parcel Service

March 29, 1989

THOMAS NETZEL, PLAINTIFF-APPELLANT

v.

UNITED PARCEL SERVICE, INC., DEFENDANT-APPELLEE



Before addressing the merits of plaintiff's appeal, we must address UPS' claim that we should apply to his case the standards applied by Federal courts to employment discrimination cases brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq. (1976)). Therein, a plaintiff must make out a prima facie case which a defendant must rebut by adducing some evidence of lawful motivation for the challenged action. If the defendant does so, the plaintiff must then prove that the defendant's reason for the challenged action is pretextual. McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

537 N.E.2d 1348, 181 Ill. App. 3d 808, 130 Ill. Dec. 879 1989.IL.414

Appeal from the Circuit Court of Cook County; the Hon. Mary Ann McMorrow, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiff, Thomas Netzel, appeals from the trial court's grant of a new trial on both liability and damages in his suit for retaliatory discharge against defendant, United Parcel Service, Inc. . At trial, a jury found in plaintiff's favor and awarded him $200,000 in compensatory damages.

This court's prior opinion (Netzel v. United Parcel Service, Inc. (1987), 165 Ill. App. 3d 685, 520 N.E.2d 665), finding that plaintiff's claim for retaliatory discharge had been preempted by section 301 of the Labor Management Relations Act (29 U.S.C. § 185(a) (1976)), was reversed by the supreme court in a supervisory order based on, inter alia, Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. , 100 L. Ed. 2d 410, 108 S. Ct. 1877, and Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill. 2d 1, 503 N.E.2d 308, cert. denied (1987), 483 U.S. 1032, 97 L. Ed. 2d 779, 107 S. Ct. 3248.

Plaintiff injured his knee while working as a package car driver for UPS on June 7, 1977. Plaintiff was off the job for extended periods in between which he unsuccessfully attempted to return to work. Plaintiff filed a claim under the Workmen's Compensation Act (the Act) (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) on July 12, 1978. On June 7, 1977, and three subsequent occasions on which he attempted to return to work, including August 7, 1979, the date of his discharge, plaintiff could not continue his route of package deliveries and pick-ups due to pain and swelling in his knee. On June 7, 1977, and the two occasions prior to his discharge when he could not continue working, a supervisor granted plaintiff permission to return to the UPS distribution center with undelivered packages or "NDA's" (no delivery attempted). Plaintiff maintained at trial that he was also given permission to return to the distribution center on August 7, 1979. Defendant maintained that plaintiff was ordered to remain on his route until a supervisor went out to assist him in completing his route.

After his discharge, plaintiff sued, alleging he was discharged in violation of section 4(h) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.4(h)) for filing a claim thereunder. After the jury verdict for plaintiff, UPS filed a post-trial motion. UPS requested either a directed verdict at the close of plaintiff's case in chief, judgment notwithstanding the verdict, a new trial or a remittitur.

The trial court denied UPS' motion for a judgment n.o.v. It did not rule on the motion for a directed verdict or remittitur. The trial court granted UPS a new trial on both liability and damages. The court found that there was no evidence linking plaintiff's discharge "with his having filed a [workmen's] [compensation] [claim] more than one year prior to his discharge." The court also found that the damage award could not stand because of plaintiff's testimony that he could not perform the work required of a UPS driver after his injury and because the jury did not give him "credit for some of the benefits he received." By this last remark, the trial court was apparently referring to disability payments plaintiff received after his discharge.

No Illinois court has applied the standards under the Civil Rights Act of 1964 to claims of retaliatory discharge brought under Illinois law. We therefore decline to do so here. We believe that such cases should be reviewed under a traditional tort analysis. The cases most like retaliatory discharge cases involve claims of breach of employment contracts by wrongful discharge. Therein, the employer must show that the plaintiff was guilty of conduct justifying his discharge. (Lukasik v. Riddell, Inc. (1983), 116 Ill. App. 3d 339, 346, 452 N.E.2d 55; Foster v. Springfield Clinic (1980), 88 Ill. App. 3d 459, 464, 410 N.E.2d 604.) Whether the plaintiff disobeyed reasonable orders and was thus terminated for good cause is a question for the trier of fact. (Lukasik, 116 Ill. App. 3d 339, 452 N.E.2d 55; Foster, 88 Ill. App. 3d 459, 410 N.E.2d 604.) These are proper considerations for a jury evaluating a claim of retaliatory discharge. However, a plaintiff must still convince the trier of fact only by a preponderance of the evidence that he was discharged for exercising his rights under the Workmen's Compensation Act.

On appeal, plaintiff first contends the trial court abused its discretion in ordering a new trial because the jury's verdict was not against the manifest weight of the evidence.

A motion for new trial is addressed to the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of discretion. (Cadral Corp. v. Solomon, Cordwell, Buenz & Associates, Inc. (1986), 147 Ill. App. 3d 466, 497 N.E.2d 1285.) The standard to be applied in deciding a motion for new trial is whether the jury's verdict was against the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 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's findings are unreasonable, arbitrary and not based upon the evidence. (Anderson v. Beers (1979), 74 Ill. App. 3d 619, 623, 393 N.E.2d 552.) In determining the propriety of a new trial, neither a trial nor ...


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