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Terry v. Watts Copy Systems

April 16, 2002

JOHN D. TERRY, PLAINTIFF-APPELLANT,
v.
WATTS COPY SYSTEMS, INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Sangamon County No. 01L59 Honorable Leo J. Zappa, Jr., Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

Released for publication April 18, 2002.

JOHN D. TERRY, PLAINTIFF-APPELLANT,
v.
WATTS COPY SYSTEMS, INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE.

Appeal from Circuit Court of Sangamon County No. 01L59 Honorable Leo J. Zappa, Jr., Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

PUBLISHED

 In February 1998, plaintiff, John D. Terry, was terminated from his employment at defendant, Watts Copy Systems, Inc. (Watts). Terry later filed a complaint with the Illinois Human Rights Commission (Commission), alleging that he was fired because of a handicap, in violation of section 2-102 of the Human Rights Act (Act) (775 ILCS 5/2-102 (West 2000)). In June 2000, a hearing was held before an administrative law judge (ALJ) of the Commission. In December 2000, the ALJ entered a recommended order and decision in Watts' favor, which the Commission later adopted. Terry appealed that decision (No. 4-01-0321), which is a separate appeal.

In February 2001, Terry filed the underlying complaint of retaliatory discharge, alleging that Watts fired him in retaliation for exercising his rights under the Workers' Compensation Act (820 ILCS 305/1 through 30 (West 2000)). Watts filed a motion to dismiss Terry's complaint, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(4) (West 2000)). Following an April 2001 hearing, the trial court granted Watts' motion to dismiss Terry's complaint, upon concluding that it was barred by res judicata.

In May 2001, Terry filed a postjudgment motion and a motion for partial summary judgment on the issue of liability. In July 2001, the trial court denied both motions.

Terry appeals, arguing that (1) his retaliatory discharge claim is not barred by the doctrines of res judicata or collateral estoppel; and (2) the trial court erred by denying his summary judgment motion. We reverse the court's dismissal of Terry's complaint and decline to address its denial of Terry's summary judgment motion.

I. BACKGROUND

Following a June 2000 evidentiary hearing, the ALJ made the following findings of fact. Terry began working for Watts as a field service technician in 1992. In March 1996, Terry's supervisors talked to him about his excessive absenteeism, noting that within a three-month period he had been absent 13 days. In December 1996, Lisa Haley, Watts' personnel manager, documented 14 absences between June 11, 1996, and December 17, 1996. In May 1997, Terry's supervisor suspended Terry for one day due to his having been absent on 13 days between January 1997 and May 1997. Terry attributed his absences to his son's illness.

On November 4, 1997, Terry injured his back while repairing a photocopier machine. Terry did not return to work until November 10, 1997, pursuant to a note from his physician (identified in the record only as Dr. Jones). On that date, Terry returned to work but was restricted to light duty requiring no lifting or bending. Jones' note indicated that Terry could return to normal duties on November 17, 1997. While on light duty, Terry was given a chair and photocopiers were brought to him to be repaired and cleaned.

On November 17, 1997, Terry resumed normal duties repairing copiers, but at some point that day, he suffered back pain and told his supervisor he could not complete his work. The next day, Terry saw Jones, who again placed him on light duty and restricted him from bending or lifting. Terry returned to his light-duty assignment in Watts' reconditioning division.

On November 24, 1997, Terry told Haley that he could not handle light duty and would not return to work. Terry went back to Jones, who, after considering results of a magnetic resonance imaging (MRI) test, wrote a note indicating that Terry would not be able to work until further notice and would be undergoing physical therapy. Jones referred Terry to a doctor identified in the record only as Dr. Riesenberger.

Riesenberger diagnosed Terry with a degenerative disc disease, which caused the outer fibers of his lumbar discs to degrade and break. While tears could heal properly and allow Terry to return to work, the disease rendered Terry susceptible to recurrent flare-ups of pain. Terry received physical therapy throughout December 1997 and January 1998. On December 16, 1997, he saw Jones, who issued another note indicating that Terry would not be able to return to work until further notice.

During his treatments with Riesenberger, Terry informed Riesenberger that he was a musician in a band and sometimes helped set up the stage for performances. Riesenberger encouraged Terry to continue playing in the band as long as he used proper lifting mechanics.

Meanwhile, Haley had learned from other Watts' employees that Terry had been playing in a band. Terry had filed a workers' compensation claim shortly after his November 1997 injury and received temporary total disability benefits for the periods he was not working due to his injury. Haley contacted Fremont Insurance Agency (Fremont), Watts' workers' compensation carrier. Fremont hired a detective who, on January 31, 1998, videotaped Terry playing in a band and carrying and loading sound equipment. On February 3, 1998, Fremont informed Haley what the detective had observed and informed her that Terry's benefits would be discontinued.

Terry played in the band on five occasions between November 21, 1997, and January 31, 1998. He played a guitar that weighed 10 to 15 pounds and used an amplifier that weighed about 40 pounds. Typically, he played in the band twice a month and performed in the standing position with the guitar strapped to his body for a total of three to four hours per performance (40-minute sets separated by 20-minute breaks). After November 4, 1997, the band hired someone to move ...


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