United States District Court, Central District of Illinois, Peoria Division
June 30, 1993
PAT ROGER, PLAINTIFF,
YELLOW FREIGHT SYSTEMS, INC., DEFENDANT.
The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is Defendant's Motion for Summary Judgment
on Plaintiff's Amended Complaint. Plaintiff's Amended
Complaint is in one count alleging that he was discharged "in
retaliation for the Plaintiff filing a workmens' compensation
claim against the Defendant." (Amended Complaint para. 9). The
Court has jurisdiction of this diversity case pursuant to
28 U.S.C. § 1332.
"A motion for summary judgment is not an appropriate
occasion for weighing the evidence; rather, the inquiry is
limited to determining if there is a genuine issue for trial."
Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir. 1990). See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.
2505, 2510, 91 L.ED.2d 202 (1986). This Court must "view the
record and all inferences drawn from it in the light most
favorable to the party opposing the motion." Holland v.
Jefferson National Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.
1989). When faced with a Motion for Summary Judgment, the
non-moving party may not rest on its pleadings. Rather, it is
necessary for the non-moving party to demonstrate, through
specific evidence, that there remains a genuine issue of
triable fact. See, Celotex Corp. v. Catrett, 477 U.S. 317, 324,
106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Bank Leumi
Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).
Defendant is a trucking company engaged in the business of
freight transportation services. In 1986, Plaintiff resigned
his position as a road driver for Defendant to accept the
position of Safety Training Specialist. (Thompson Affidavit p.
1). The duties of the Safety Training Specialist involved
touring the United States with Yellow Freight's Safety
Training Unit to present a variety of safety programs to
various audiences. Id. The Safety Training Unit was a
tractor-trailer outfitted with VCRs, a monitor, safety video
tapes, displays, and its own generator. (Id. p. 2).
On October 31, 1990, Plaintiff fell off the tractor-trailer
and injured his back. (Plaintiff's Dep. p. 32-34). Plaintiff
continued to work until June 6, 1991, but eventually stopped
working because of pain. On January 23, 1992, Plaintiff was
laid off. (Thompson Affidavit Ex. C). His status was changed
to "termination due to lack of work" on April 9, 1992.
(Thompson Affidavit, Ex. D).
Kenneth Thompson was employed by Defendant as Vice
President-Linehaul Safety throughout 1991. In the fall of
1991, Thompson was instructed by Robert Bostick, his
supervisor and Defendant's Senior Vice President-Operations,
to review the Safety Department and make recommendations to
Bostick regarding expense reduction. (Thompson Affidavit p. 3,
Bostick Affidavit p. 3).
In November of 1991, Thompson recommended the elimination of
four Safety Coordinators, and those positions were eliminated.
Thompson subsequently recommended that Plaintiff's position as
Safety Training Specialist be eliminated. The stated reason
for eliminating Plaintiff's position is as follows:
The reasons that we selected the Safety Training
Specialist job to be eliminated as part of the
downsizing and restructuring of my department
included the high costs of operating and
maintaining the Safety Training Unit, the fact
that the Safety Training Unit did not directly
contribute to revenue for Yellow Freight, the
fact that the Safety Training Unit and the Safety
Training Specialist job were largely nonessential
public relations efforts on behalf of Yellow
Freight, and Yellow Freight's desire not to
alienate its customers by operation of the rather
extravagant Safety Training Unit when, at the
same time, it was implementing rate increases for
its customers' shipment of freight.
(Thompson Affidavit p. 4-5).
After the Safety Training Specialist position was
eliminated, the duties that had been performed by Plaintiff
were no longer performed by anyone in Defendant's employ. The
Safety Training Unit was put up for sale and eventually
purchased by the Pennsylvania Trucking Association in 1992.
Id. at 6. Subsequent to his discharge, Plaintiff filed workers'
compensation claims in both Illinois and Kansas. These claims
were filed at approximately the same time in "May or June" of
1992. (Rogers Dep. p. 137-38).
"Illinois courts have recognized a cause of action when a
Plaintiff is discharged in retaliation for filing a workers'
compensation claim." Washburn v. IBP, Inc., 910 F.2d 372, 373
(7th Cir. 1990) (citations omitted). For Plaintiff to recover
for the tort of retaliatory discharge, he must prove that "(1)
he was discharged from employment; (2) in retaliation for his
activities; and (3) the discharge violates a clear public
policy." Id. When applied specifically to workers' compensation
claims, Plaintiff must prove the following elements:
First the plaintiff must have been an employee of
the defendant before the injury occurred. Second,
the plaintiff must have exercised or threatened
to exercise a right granted by the workers'
compensation act. Finally, the plaintiff's
termination must have been causally related to
his or her filing of a claim or statement of
intent under the act.
Mercil v. Federal Express Corp., 664 F. Supp. 315, 317 (N.D.Ill.
1987) (citations omitted). "The causation element is not met if
the employer has a valid basis, which is not a pretext, for
discharging the plaintiff." Id. (citations omitted). However,
if the plaintiff is an at-will employee who may be fired for no
reason at all, "the employer need not tender a legitimate
reason for the termination if the employee has not proved, or
at least presented a prima facie case, that he or she was fired
in retaliation for asserting workers' compensation act rights."
In its Motion for Summary Judgment, Defendant argues that
Plaintiff cannot establish that he was discharged in
retaliation for filing a workers' compensation claim because
he did not file the claim until after his discharge.
The essential allegations in Plaintiff's Amended Complaint
are set out in paragraphs nine and ten which state:
9. That the discharge of the Plaintiff was in
retaliation for the Plaintiff filing a workmens'
compensation claim against the Defendant.
10. That under Section 4 of the Workmens'
Compensation Act of the State of Illinois, it is
illegal for an employer to discharge an employee
for exercising his rights under the Act by filing
a claim seeking relief under the Act and said
Section 4 establishes a clear mandated public
policy of the State of Illinois.
(Amended Complaint para. 9-10).
Thus, the only theory of recovery advanced by Plaintiff is
that he was fired in retaliation
for filing a workers' compensation claim. Defendant argues,
however, that Plaintiff cannot establish that his discharge
was retaliatory because his workers' compensation claim was
filed after his discharge.
The evidence indicates that Plaintiff was laid off in
January of 1992, and that his status was changed to
"terminated" on April 9, 1992. By Plaintiff's own admission,
however, he did not file a workers' compensation claim until
May or June of 1992, one to two months after he was officially
terminated. Plaintiff's deposition testimony casts further
light on the circumstances surrounding the filing of his
Q. When was the first time you contemplated
filing these workers' comp claims?
A. When I stopped hearing anything from Yellow
Q. When was that?
A. I'm guessing now. In May or June when I filed
for adjudication of my workers' comp case.
Q. So shortly before you actually filed is when
you first contemplated doing so?
Q. Have you ever had any conversations with any
representative of Yellow Freight regarding your
workers' compensation claims?
Q. Did you ever inform anyone from Yellow Freight
that you intended to file a workers' compensation
Q. Do you remember talking with either Mr.
Thompson or Mr. Cook about your workers'
Q. How about Mr. Bostick?
(Plaintiff's Dep. p. 139-40).
Plaintiff's own testimony shows that he could not have been
discharged in retaliation for filing a workers' compensation
claim because he filed the claims weeks after his discharge.
In response Plaintiff argues that:
[T]he "gravamen of the tort of retaliatory
discharge is not that the Plaintiff was
terminated necessarily after he filed a workmens'
compensation claim. The correct terminology is that
a Plaintiff is terminated after he exercises his
rights pursuant to the Workmens' Compensation Act.
It is true that the Amended Complaint is stated
along the terms of the Plaintiff filing a workmens'
compensation claim. However, the pleadings in
Federal Court are notice pleadings and it is only
required that they give the other side sufficient
notice of what he is being charged with.
(Plaintiff's response p. 1).
Plaintiff's argument creates a distinction without a
difference. As noted above in Plaintiff's deposition, he
neither discussed workers' compensation with his superiors nor
contemplated filing a claim until after he was discharged.
Thus, even accepting Plaintiff's "correct terminology" that he
was terminated after he "exercised his rights" under the
Workers' Compensation Act, he still has not established as a
matter of law that he suffered retaliatory discharge. As noted,
Plaintiff did not contemplate nor take any steps toward making
his claim for Workers' Compensation until one to two months
after he was discharged and five to six months after he was
laid off. In a similar situation, the court in Springer v.
Allis-Chalmers Corp., 1988 WL 19243 (C.D.Ill. 1987), stated as
Springer was informed of his termination before
there was any discussion by Springer about
applying for disability benefits. Therefore, in
the absence of evidence that Springer had
previously discussed this anticipated action, and
that Allis-Chalmers knew of Springer's plan,
there is no scenario that this Court can imagine
under which Allis-Chalmers could be deemed to
have terminated Springer in retaliation for
applying for disability benefits. Further, the
record reflects that at the time Springer was
terminated, he had not taken any steps toward
making [an] application for disability benefits.
Id. at 3. In Springer, the court granted Defendant's motion for
summary judgment on the retaliatory discharge claim. See also
Mercil, 664 F. Supp. 315 (The court granted summary judgment
where none of the employees
charged with the responsibility of terminating the employee
were informed that he was planing to file a workers'
In an attempt to salvage his cause of action, Plaintiff has
accused Defendant's representatives of a great deal of
misconduct which occurred prior to his discharge. Plaintiff
has also accused Defendant of "intentionally mislead[ing] the
Court as to a proper analyazation (sic) of the facts of this
case." (Plaintiff's Answer to Defendant's Motion for Summary
Judgment p. 1). A careful review of the evidence, however,
reveals that it is Plaintiff who has attempted to mislead the
Court. For example, Plaintiff argues that the following
occurred subsequent to his injury but before his discharge:
Thompson accused Plaintiff of trying to pull
something on the company.
Thompson accused Plaintiff of trying to pull
something on Thompson.
Thompson threatened Plaintiff when Plaintiff told
Thompson that Juanita Ball (the person who
handles insurance claims for Defendant) was
mistreating the Plaintiff.
Thompson's attitude changed towards the Plaintiff
after Plaintiff reported the injury and Plaintiff
then became a bad guy.
Thompson stated that Plaintiff was trying to pull
something on Juanita Ball.
(Plaintiff's brief p. 4).
Each of the alleged incidents reference page 144 of
Plaintiff's deposition, but a review of the page reveals
Defendant's representatives did not make the statements or
accusations attributed to them by Plaintiff. Rather, the
incidents reflect Plaintiff's own perception of events.
Right from the very beginning of this thing from
the time I told Mr. Thompson that I was injured
on the job up until my termination, I could see
the difference, the change of his attitude right
from the get-go all the way along the line with
Juanita Ball. Whenever I would have a
conversation with Juanita Ball and I would call
him and complain, I was the bad guy, "Don't
antagonize Juanita Ball." I was always the bad
guy with Juanita Ball. With Mr. Thompson I was
the bad guy, like I was trying to pull something
on Yellow Freight, like I was trying to pull
something on Ken Thompson, like I was trying to
pull something on Juanita Ball.
(Plaintiff's Dep. p. 145).
Plaintiff also refers to page 76 of his deposition to
support an argument that on June 12, 1991 "Juanita Ball
accused the Plaintiff of trying to pull something on the
company. . . ." (Plaintiff's brief p. 5). However, a review of
page 76 reveals that this was not a statement by Juanita Ball,
but Plaintiff's perception of events. The deposition reads:
Q. What, if anything, do you recall about these
conversations with Juanita Ball that happened
after the June 12th appointment?
A. The very same thing that happened on all of
them, very antagonistic attitude towards me like
I was trying to pull something on the company
continually all the time and Juanita Ball is
Clearly, Defendant's representatives did not make the
statements that Plaintiff specifically accuses them of making.
Rather Plaintiff refers to his own thoughts as direct
statements made by Defendant's representatives. Such
mischaracterization of the evidence is an inappropriate manner
in which to rebut a Motion for Summary Judgment.*fn2
Regardless of the above, there is also ample evidence in the
record that Plaintiff was terminated due to a company-wide
reduction in force (RIF). The evidence indicates that 1991 was
a difficult year for Defendant due to the weak economy. "The
holding company's net income dropped to 95 cents per share in
1991, compared to 1990 when net income was $2.31 per share.
the holding company's ratio of operating expenses to revenue
was 97.6 in 1991, up from 1990's ratio of 94.8." (Bostick
Affidavit p. 2). The holding company, through its main
subsidiary, Yellow Freight, took measures to reduce costs and
increase profits. Accordingly, Bostick instructed department
heads to recommend cost cutting measures. Id. Six departments
ranging in size from 2 to 40 employees were involved, and
overall, Defendant reduced its work force by over 1,400
employees between 1991 and 1992. (Defendant's Interrogatory
response # 2). Mr. Thompson, who was Plaintiff's department
head, recommended the elimination of 5 people, which included
four Safety Coordinators and Plaintiff's position, the Safety
Training Specialist. Moreover, sixty-six employees who reported
to or worked out of Defendant's general office, including
Plaintiff, were laid off. Id. at 3, (Defendant's Interrogatory
response # 5). As previously noted, Plaintiff's job was
eliminated because it was a nonessential position with high
operating costs which did not directly contribute to revenue.
Id. Furthermore, the evidence reveals that the total operating
expenses for the Safety Training Unit from 1990 through June 6,
1991, the date Plaintiff stopped working were $154,525.31.
(Thompson Affidavit p. 2). After Plaintiff's position was
eliminated, the Safety Training Unit was sold and no one has
since performed Plaintiff's old duties. (Thompson Affidavit
para. 16, Roger Dep. p. 134-37).
Plaintiff claims, without support, that he was not
terminated as part of a RIF by arguing that a downsizing of
1,400 employees does not qualify as a RIF, that Defendant
manipulated the numbers to show a RIF, and that Defendant did
not have a written plan for a RIF. Plaintiff's argument, in
addition to being unsupported, is also unpersuasive. See
Konowitz v. Schnadig Corp., 965 F.2d 230 (7th Cir. 1992) (The
absence of written guidelines for carrying out RIFs is
Based upon the evidence, the Court finds that Plaintiff was
discharged due to an overall reduction in force. Accordingly,
Plaintiff cannot establish that his discharge was causally
connected to filing a Workers Compensation claim. Therefore,
the discharge was not retaliatory. See Groark v. Thorleif
Larsen & Son, Inc., 231 Ill. App.3d 39, 61, 172 Ill.Dec. 799,
596 N.E.2d 78 (1992) (Overall reduction in work force prevented
employee from satisfying causal relationship for retaliatory
discharge claim based on failure to rehire worker after filing
workers' compensation claim); Lewis v. Zachary Confections Co.,
153 Ill. App.3d 311, 106 Ill.Dec. 296, 505 N.E.2d 1087, app.
denied 116 Ill.2d 560, 113 Ill.Dec. 301, 515 N.E.2d 110 (1987)
(A laid off seasonal employee could not causally connect lay
off with filing of workers' compensation claim); Armstrong v.
Freeman United Coal Mining Co., 112 Ill. App.3d 1020, 68
Ill.Dec. 562, 446 N.E.2d 296 (1983) (Employee was not
terminated in retaliation for exercise of rights under Workers'
Compensation Act where termination was part of a general
cut-back in employment).
In Summary, the Court finds that Defendant has shown that
the Plaintiff was not discharged in retaliation for filing a
workers' compensation claim. Accordingly, the Court
GRANTS Defendant's Motion for Summary Judgment, and the Clerk
of the Court is Directed to enter judgment in favor of
Defendant and against Plaintiff. Each party to bear their own
costs. CASE TERMINATED.