Appeal from the Circuit Court of Lake County. No. 96--L--132 Honorable Jack Hoogasian, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Plaintiff, Michael Paz, appeals from the jury's verdict in favor of defendant, Commonwealth Edison Company (ComEd). We affirm.
Plaintiff was an employee of ComEd when he was injured on the job. On August 16, 1989, a large piece of metal fell from an overhead crane and landed on the grate upon which plaintiff was standing. Plaintiff was thrown against a railing and struck on the knees by the piece of metal. During the next two years, plaintiff on occasion returned to work part time and performed light-duty tasks. Plaintiff was paid in excess of $51,000 in workers' compensation benefits during the period of his disability, and medical bills of almost $25,000 were also paid. Eventually, plaintiff and ComEd settled on total worker's compensation benefits of $115,000, which was approved by the Industrial Commission. Plaintiff was examined by several doctors during this period, including his personal physician and a doctor employed by ComEd. Plaintiff's ability to work was often disputed by these doctors. Eventually, on the morning of November 7, 1991, plaintiff was examined by Dr. Fitzpatrick, who was employed by ComEd. The parties dispute whether Fitzpatrick at that time released plaintiff to work full time. Plaintiff did not report to work on November 7, and he was terminated that day.
Plaintiff filed suit, alleging retaliatory discharge, and his second amended complaint proceeded to a jury trial after the court denied motions for summary judgment and judgment on the pleadings. The jury returned a verdict in ComEd's favor. Plaintiff's posttrial motion was denied. This appeal followed.
Plaintiff first contends that he was entitled to summary judgment on the issue of liability. However, an order denying a motion for summary judgment is not reviewable after an evidentiary trial, as any error in the denial is merged in the subsequent trial. Contract Development Corp. v. Beck, 255 Ill. App. 3d 660, 664 (1994). Therefore, we will address this contention in the context of whether the jury's verdict was against the manifest weight of the evidence. A verdict is against the manifest weight of the evidence only where conclusions opposite those reached by the jury are clearly evident, plain, and undisputable. Moore v. Anchor Organization for Health Maintenance, 284 Ill. App. 3d 874, 880 (1996).
The general rule in Illinois is that an at-will employee may be discharged by the employer at any time and for any reason. Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 17-18 (1998). (Although plaintiff herein was a union member, the union contract was not involved in this case and the plaintiff was an at-will employee for all relevant purposes in this litigation.) However, our supreme court recognized a limited exception to this rule in Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978), when it determined that a plaintiff who was terminated for pursuing workers' compensation benefits could bring an action for retaliatory discharge against the former employer. See Buckner, 182 Ill. 2d at 18. The supreme court has deflected many attempts to expand this tort and has maintained retaliatory discharge as a limited and narrow exception to the general rule of at-will discharges. See Buckner, 182 Ill. 2d at 18-20. To state a cause of action for retaliatory discharge, a claimant must allege that (1) he was an employee of the defendant before or at the time of the injury; (2) he exercised some right granted by the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)); and (3) his discharge was causally related to the exercise of that right under the Act. Clark v. Owens-Brockway Glass Container, Inc., 297 Ill. App 3d 694, 697 (1998). The element of causation is not met if the employer has a valid, non-pretextual basis for discharging the employee. Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 160 (1992). Excess absenteeism, even caused by a compensable injury, may be a valid reason for dismissal, and an employer is under no obligation to retain an at-will employee who is medically unable to return to his assigned position. Hartlein, 151 Ill. 2d at 159-60.
Here, there is no question that plaintiff was employed by ComEd at the time of the injury or that plaintiff exercised his right to benefits under the Act. However, the jury concluded that plaintiff's discharge was not causally related to his exercise of rights under the Act. This conclusion was not against the manifest weight of the evidence. Plaintiff was discharged more than two years after he was injured and began receiving benefits under the Act. He had not reported to work for approximately five months at the time of his firing and did not report on November 7, the date on which ComEd discharged him after determining that the plaintiff could not or would not do full-time work. ComEd only had eight-hour-a-day restricted-duty work available. Plaintiff refused to work eight hours a day. The evidence does not so overwhelmingly favor plaintiff that no contrary verdict could stand. Therefore, the jury's verdict was not against the manifest weight of the evidence.
Plaintiff cites Clark as controlling. In that case, Clark injured her back on March 3, 1991, and began receiving temporary total disability payments on March 13. After initially agreeing with Clark's family physician's course of treatment, the employer, Owens-Brockway, "suspected that Clark was malingering." Clark, 297 Ill. App. 3d at 696. On May 23, 1992, Clark was videotaped mowing her lawn. She was suspended on June 1 and was fired, after a hearing, on June 3. In Clark's suit for retaliatory discharge, the trial court granted summary judgment in Clark's favor on the issue of liability. The appellate court affirmed, concluding that summary judgment in Clark's favor "was proper because her discharge was directly and proximately related to her claim for benefits." Clark, 297 Ill. App. 3d at 698. The court stated that "[a]n employer may discharge an injured employee who has filed a workers' compensation claim as long as the reason for the discharge is wholly unrelated to the employee's claim for benefits under the Workers' Compensation Act." Clark, 297 Ill App. 3d at 698. However, "[a]n employer may not discharge an employee on the basis of a dispute about the extent or duration of a compensable injury." Clark, 297 Ill. App. 3d at 699. The court found as undisputed the fact that Clark was discharged because Owens-Brockway believed that her claim for benefits was exaggerated. Clark, 297 Ill. App. 3d at 698.
The dissent also relies on Clark, arguing that, because "a dispute over whether plaintiff could work eight-hour days existed," ComEd discharged plaintiff on the basis of that dispute. Slip op. at 26. However, we find Clark distinguishable. Clark involved the review of a grant of summary judgment in an uncontested factual scenario; the cause did not go to verdict. The Clark court found that the evidence that Clark's discharge was directly related to her claim for benefits was "undisputed." In the case before us, the evidence was disputed. ComEd has presented evidence that plaintiff was fired for not returning to work after he had been released to work full time and that it had no part-time work for plaintiff. Plaintiff and the dissent would have this court take the Clark holding that an employee may not be discharged "on the basis of a dispute about the extent or duration of a compensable injury" (Clark, 297 Ill. App. 3d at 699) to mean that any time an employee is unable to return to work or refuses to return because his personal physician advises against it the employer cannot do anything about it, as this would involve a dispute about the extent or duration of the employee's injury. This is not the law, and we will not make it so. Plaintiff and the dissent attempt to take a factual issue (the dispute over plaintiff's ability to work eight-hour days) and turn it into a question of law inuring to the benefit of the plaintiff. The evidence against the employer in Clark was undisputed. Such is not the case here. To that extent, Clark is inapplicable and distinguishable.
Effectively, the dissent takes a dispute as to a fact, causality, cites the undisputed fact that the workers' compensation claim was pending, and determines that, as a matter of law, causality has been proved. Under the logic of the dissent, an employer could not even raise facts alleging termination for any other reason. If a dispute regarding the nature and extent of the plaintiff's injury exists, an employer could not present evidence that the plaintiff was terminated for sexually harassing another employee or stealing inventory, since, according to the dissent, the dispute over the nature and extent of the injury would be, as a matter of law, the cause of the termination. Many facts may exist that would tend to prove several different motives for termination. Because motive is a question of fact, not law, summary judgment is generally inappropriate in retaliatory discharge cases even if it were capable of review. See Austin v. St. Joseph Hospital, 187 Ill. App. 3d 891, 897 (1989). The dispute over plaintiff's ability to return to full-time employment, in this case, is just one fact to be considered by the fact finder. Whether plaintiff's discharge was retaliation for exercising his rights under the Act or whether the discharge was ComEd's lawful termination of an employee unable to fulfill his duties is a question of fact to be decided after viewing all the evidence. The jury found in favor of ComEd, and we believe the decision was not against the manifest weight of the evidence.
The dissent's view, if adopted, would remove "retaliatory" from "retaliatory discharge" and would, in essence, reverse Hartlein. Under the dissent's logic, an employer would be better off never discussing an injured employee's medical situation and immediately giving the employee an ultimatum of "Return to work or we will need to hire a replacement to do your job." Hartlein, decided by our supreme court, does not place employers and employees in such a predicament. An employer is not obligated to retain an at-will employee who is medically unable to return to his assigned position. Hartlein, 151 Ill. 2d at 159. In its own recitation of the facts, the dissent acknowledges that plaintiff was informed that "the only work ComEd had available for plaintiff was eight-hour-a-day restricted-duty work. Again citing Dr. Larson's restrictions, plaintiff refused to work eight-hour days and consequently did not return to work for ComEd." Slip op at 21. This fact places the case directly under the holding of Hartlein.
The dissent attempts to distinguish Hartlein by arguing that it was undisputed that the plaintiff in Hartlein was medically unable to ever return to his former position in the company, while plaintiff's ability to return to work in this case was medically disputed. Drawing this distinction, the dissent then argues that ComEd "did not have the right to terminate plaintiff based on a determination that he was medically unable to return to work." Slip op. at 27-28. However, this is a distinction without a difference. Employers may act on the basis of their employee's disabilities. Hartlein, 151 Ill. 2d at 160. Hartlein cited with approval Slover v. Brown, 140 Ill. App. 3d 618 (1986), in which the appellate court found in favor of an employer that did not employ an injured employee who attempted to return to work after a 22-month injury recuperation. Excess absenteeism, even if caused by a compensable injury, may properly be the basis for firing an employee. Hartlein, 151 Ill. 2d at 160. Absenteeism does not imply that the injured employee will never be able to return to his current job; it means merely that the employee is absent from work currently. The supreme court did not say that the undisputed inability to return to work in the future can be the basis for termination. A plaintiff's inability to be at work and do his job, whether the reason for that inability is disputed or not, is a proper basis for termination.
The dissent argues that only the Industrial Commission (Commission) can determine whether a plaintiff is capable of returning to work; an employer must await such a determination before it can demand an employee's return to work and terminate the employee for failure to do so. However, the Commission's jurisdiction is limited to "[a]ll questions arising under this Act." See 820 ILCS 305/18 (West 1996). Questions regarding the compensation due to an injured employee because of the injury shall be addressed only by the Commission. However, an employer's need to have an employee who is able to fulfill the duties of employment and an employee's ability to fulfill his duties of employment are not questions within the Commission's competence or jurisdiction.
Furthermore, the dissent's reliance on the arbitration provided in section 19(p) of the Act (820 ILCS 305/19(p) (West 1996)) is completely misplaced. Slip op. at 26. Section 19 of the Act provides for arbitration of claims for temporary or permanent disability, and the payment of compensation may be ordered. See 820 ILCS 305/19(b) (West 1996). The arbitrator's order is to be "conclusive as to all other questions except the nature and extent of said disability." (Emphasis added.) 820 ILCS 305/19(b) (West 1996). Nowhere does section 19 give an arbitrator the power to determine an employee's current availability for work or the employer's right to discharge the employee; the arbitrator's findings as to the nature and extent of the injury are not even conclusive. Submission to arbitration is neither required nor of any value, as the question of an employee's continued employment is not properly before the Commission or an arbitrator.
We also fail to see the significance that the dissent places on the fact that ComEd and plaintiff dispute plaintiff's ability to return to work full time. If both ComEd and plaintiff agreed that plaintiff was unable to do his job, presumably ComEd would be free to terminate plaintiff, as there would be no dispute as to the nature and extent of plaintiff's injury. Plaintiff here acknowledges that he is unable to perform the duties of his job. Whether ComEd agrees with him or not is not relevant. The dispute about his ability to perform should not be the focus; his actual inability to perform should be.
The dissent also raises the issue of vocational rehabilitation under the Act. Slip op. at 28. However, plaintiff never raised this issue in the trial court, and it is not an appropriate ground for resolution or reversal.
Plaintiff argues that, under the Act, an injured employee has the right to select his own physician and that ComEd "obliterated" this right by compelling plaintiff to ignore the medical advice of his chosen doctor and instead submit to the decision of the company doctor. However, as we have already stated, an employer is not obligated to retain an at-will employee who is medically unable to return to his position, nor is an employer obligated to reassign such an employee to another position. See Hartlein, 151 Ill. 2d at 159. To accept plaintiff's argument would be to require all employers to accept an employee's excuse from his private physician without question and without recourse if the personal physician's diagnosis or treatment makes the employee unable to return to his position. An employer is not required to continue employing an injured employee; certainly, it is not required to accept his doctor's treatment plan indefinitely.
Plaintiff argues that an action for retaliatory discharge is not limited to a discharge for the act of filing a workers' compensation claim but includes termination for exercising rights to medical care. Assuming, arguendo, this contention is true, our analysis and conclusion are not altered. Plaintiff was never denied the right to seek medical care of his choosing. Plaintiff received over two years of such care. However, the employee's right to seek medical care does not require the employer to retain the employee forever. Plaintiff's argument would give employees and their personal physicians power to keep the non-working employee on the payroll indefinitely. As we have seen, an employer is not required to keep an injured employee on the payroll indefinitely, even if the injury was work-related. ComEd was not required to allow plaintiff to recuperate at home or to work part-time hours indefinitely. The plaintiff fails to realize that the jury found against him and, under the evidence, the jury could have found a good-faith motive for termination.
Plaintiff next contends that the manifest weight of the evidence showed that he was terminated before he could return to work on November 7 and that the doctor's examination was simply a prearranged prelude to terminating him for asserting his workers' compensation rights. Plaintiff testified that he was picked up at approximately 8:30 to 9 a.m. on the morning of November 7, 1991, by Langston Hughes and Ed Chapman and taken to an appointment with Dr. Fitzpatrick at the ComEd medical department. He was never told to return to work and, after eating lunch with Hughes and Chapman, was dropped off at his home, where the termination letter from ComEd awaited him. Hughes, a ComEd foreman, testified that he picked plaintiff up between 8 and 8:30 a.m. and drove him to the medical appointment. He never told plaintiff to return to work. After lunch, he dropped off plaintiff between 12 and 1 p.m. Chapman, a union representative, testified that he never heard anyone direct plaintiff to return to work that day. After lunching with plaintiff at about 11:30 a.m., Chapman returned to work at about 12:30 p.m. Dr. Fitzpatrick testified that he examined plaintiff on November 7 and that he communicated with ComEd his recommendation that plaintiff return to work. Fitzpatrick did not tell plaintiff that he must return to work that day, as someone else would have told plaintiff in another room. A copy of a return-to-work slip, recommending restricted duty on a full-time basis and time-stamped at 8:27 ...