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Pietruszynski v. McClier Corp.

March 25, 2003


Appeal from the Circuit Court of Cook County No. 99 L 12958 Honorable James F. Henry, Judge Presiding.

The opinion of the court was delivered by: Justice Cahill


Our ruling addresses two issues: (1) whether an employee who testifies on behalf of a co-worker in a workers' compensation hearing may pursue a retaliatory discharge claim if he can prove his discharge is causally related to his participation in the hearing; and (2) whether an employee who repeats an employer's remarks that may relate to a motive for plaintiffs' discharge are admissible as admissions by the employer.

Plaintiffs Alan and Tim Pietruszynski were laborers employed by defendant the McClier Corporation, Architects and Engineers, Inc. (McClier). Their brother Scott was also employed by McClier. Scott filed a workers' compensation claim for injuries sustained in a construction accident on a McClier jobsite. Plaintiffs were subpoenaed to testify at the workers' compensation hearing. Plaintiffs were laid off one month after testifying. They then filed a complaint against McClier, alleging retaliatory discharge.

Tim testified in a deposition that he was hired as a laborer by McClier in 1998. Tim said he secured a job with McClier because he was friends with Dan Svoboda, McClier's highest ranking superintendent. Tim was assigned to a project at the Sun-Times newspaper building. The project was expected to be completed in June 1999. Scott, also assigned to the Sun-Times project, was injured in a scaffold accident at the site in January 1999. Tim did not witness the accident but was in the area where Scott fell. Tim was reassigned to another project the day after the accident. Manny Juarez, Mike Smagur and Ed Bogacki were Tim's supervisors on that project. Tim knew that the project would end soon. Tim expected to be transferred to another project based on Svoboda's comment that he needed Tim at another site.

Tim received a subpoena to testify in Scott's workers' compensation hearing in April 1999. The hearing was continued and finally conducted in May 1999. Tim told his supervisors that he was leaving to testify on the day of the hearing. Juarez shook his head and told Tim that he and his brother Alan "are [expletive deleted] yourselves." Tim said this comment was made in Smagur's and Bogacki's presence. Tom Corning, McClier's chief operating officer, had been told that Tim and Alan would need time off to testify. Tim testified that Svoboda later admitted that Corning said that Tim and Alan had testified favorably on their brother's behalf.

Tim testified that on Friday June 18, 1999, the project was not completed. He expected to return to the site on Monday June 21, 1999. Svoboda told Tim that he would see him on Monday. Tim saw Svoboda during the weekend of June 19-20. Svoboda told Tim that Jerry Strom, the project manager, had told Svoboda not to let Tim return to the jobsite on June 21. Strom also had told Svoboda not to let Tim report to the DuPage jobsite. Tim testified that Svoboda had been told by Corning that "there is not going to be a Pietruszynski working for McClier." Tim asked to be assigned to other McClier projects but was told there were no available positions.

Alan testified that he was hired by McClier through his brother Scott in September 1998. Alan's part-time employment became full time in November 1998. Alan was working at the Sun- Times project in 1999 when his brother Scott was injured in a scaffolding accident. Alan was transferred to another project the day after the accident. Alan testified that he knew that project would be ending in June. Alan testified that Svoboda told him he would be assigned to a project in Sterling, Illinois.

Alan received a subpoena to testify at Scott's workers' compensation hearing. Alan testified that Juarez told him and Tim that they were "[expletive deleted] themselves" the day they left work to testify at the hearing. Alan testified that his last day of work with McClier was June 18, 1999. He was never assigned to the Sterling project or another McClier project.

Tom Corning testified and denied that he told superintendents not to hire plaintiffs. Corning testified that he was not usually involved in layoff decisions, but he conceded that he had been involved in laying off plaintiffs. Corning said that the only reason plaintiffs were not assigned to other projects was because of a lack of work. McClier records submitted as exhibits during Corning's deposition show that laborers were hired for both the DuPage and Sterling projects. Records also show that the number of laborer hours increased in June 1999, when plaintiffs were laid off.

Dan Svoboda testified and admitted that he promised Tim he would hire him for the DuPage project as soon as a need for labor arose. Svoboda testified that Tim became impatient and chose to sue McClier instead. Svoboda conceded that he did hire a friend for part-time labor. Svoboda explained that he hired his friend instead of Tim for personal reasons. Svoboda also denied telling Alan that he would be assigned to the Sterling project. Svoboda explained that he was not the superintendent of the Sterling project and had no authority to make hiring decisions for that project. Svoboda also denied that either Corning or Strom told him not to hire either plaintiff.

Manny Juarez testified and denied telling plaintiffs they were "[expletive deleted] themselves" when plaintiffs left to testify. Juarez said he did not care that plaintiffs were testifying since the matter did not concern him.

McClier filed a motion for summary judgment, arguing that plaintiffs failed to establish a prima facie case of retaliatory discharge. McClier contended that Svoboda's statements, repeating what he had allegedly been told by McClier supervisors, were inadmissible as double hearsay and that plaintiffs' self-serving testimony alone could not support a retaliatory discharge claim. The trial court agreed and found that the statements were inadmissible hearsay. The trial court also found unreliable plaintiffs' testimony about Juarez's statement that plaintiffs were "[expletive deleted] themselves" by testifying for their brother. The trial court entered summary judgment for defendant.

Plaintiffs argue on appeal that the trial court erred in finding Svoboda's statements were hearsay, in making credibility determinations at the summary judgment stage, and failing to consider the timing of plaintiffs' ...

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