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June 30, 1993


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." Id.

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 ...

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