Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cross v. City of Chicago

August 30, 2004

[5] FRANKLIN CROSS, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court of Cook County. No. 98 L 3631. Honorable James F. Henry, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Gordon

[8]  Plaintiff, Franklin Cross, was discharged from his position as a probationary laborer in the Chicago Department of Water. He subsequently brought this action alleging that his discharge had been in retaliation for exercising his rights pursuant to the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2002)). After discovery, defendant, the City of Chicago (the city), filed its first motion for summary judgment, arguing that plaintiff had adduced no evidence establishing a causal connection between the exercise of his rights under the Workers' Compensation Act and his termination. The circuit court granted the city's motion. We reversed and remanded, holding that a question of fact existed on that issue.*fn1

[9]  On remand, the parties filed cross-motions for summary judgment. The city argued that under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2002)) (hereinafter Tort Immunity Act), it is immune from liability for discretionary policy choices regarding whether to terminate its probationary personnel. Plaintiff argued that the evidence established each element of retaliatory discharge as a matter of law. The circuit court granted the city's motion and denied plaintiff's cross-motion. Plaintiff now appeals. For the reasons that follow, we affirm the judgment of the circuit court.

[10]   BACKGROUND

[11]   The underlying facts of this case were set out in detail in our order deciding the previous appeal in this matter. Cross v. City of Chicago, No. 1-96-1857 (September 10, 1997) (unpublished order under Supreme Court Rule 23) (hereinafter Cross I). As a result, we will only briefly summarize them here.

[12]   The record shows that on August 10, 1992, plaintiff was hired as a probationary career service laborer in the Chicago Department of Water (water department). As a probationary employee, plaintiff was required to successfully complete a six-month probationary period. By October of 1992, plaintiff's immediate supervisors and his district foreman, Robert Green, had filed reports documenting what they regarded as plaintiff's poor work performance, bad attitude, sexually harassing conduct, and insubordination. In those reports, plaintiff was described as a worker whose behavior was disruptive, who lacked motivation, and whose work was sub-standard. On October 30, 1992, Green forwarded the reports and his own memorandum to first deputy commissioner Donald Tomczak. On November 2, 1992, deputy commissioner Tomczak forwarded the reports to water department commissioner John Bolden, who had the ultimate authority to terminate the employment of probationary career service employees of the water department. With the reports, deputy commissioner Tomczak included his own recommendation that plaintiff be terminated immediately. On November 4, 1992, Commissioner Bolden responded with a memorandum ordering that plaintiff be suspended without pay for 29 days and that he be strongly reprimanded.

[13]   Meanwhile, plaintiff filed a report claiming that he sustained an on-the-job injury on October 26, 1992, while he was excavating. Plaintiff had not reported the injury to his supervisor until October 28, 1992. In the injury report, plaintiff's supervisor indicated that he was not satisfied that the injury had occurred in the course of plaintiff's employment. Beginning October 28, 1992, plaintiff was examined and treated at MercyWorks Occupational Medicine Center. He was placed on duty disability on November 4, 1992.

[14]   On November 5, 1992, the day after Commissioner Bolden ordered plaintiff's suspension, Bolden received a copy of plaintiff's October 28, 1992, injury report. Based on the supervisor's indication that the injury was not work-related, Commissioner Bolden suggested further investigation of plaintiff's claimed injury.

[15]   On November 20, 1992, the Chicago city council's committee on finance (the Committee), which administers workers' compensation in Chicago through its bureau of workmen's compensation,*fn2 denied plaintiff's claim for temporary total disability benefits because it believed that the medical condition for which plaintiff was requesting benefits was not causally connected to the alleged on-the-job injury. The Committee made this determination based, in part, on medical reports. The treating physician's report from MercyWorks indicated that plaintiff's reported symptoms were not consistent with the physician's own findings. The report also noted that plaintiff appeared to be magnifying his symptoms. In addition, plaintiff failed to appear for at least three of his scheduled appointments in a two-week period. The Committee also relied on a statement of plaintiff's co-worker, Ed Formas, who worked with plaintiff on the date of the alleged injury. Formas stated that plaintiff had flagged traffic on the day of the alleged injury, plaintiff had not engaged in any excavation, and plaintiff had not engaged in any other activity that could have caused his injury.

[16]   Commissioner Bolden stated in his affidavit and his deposition testimony that, after being informed of the decision of the Committee and of the bases of that decision, he questioned the veracity of plaintiff's injury report. Bolden's determination that plaintiff had apparently falsified the injury report led him to reconsider his earlier decision to suspend plaintiff rather than terminate his employment with the city. On November 20, 1992, Bolden decided that plaintiff should be terminated. He stated that his decision was based on the reports of plaintiff's poor work performance, the allegations of sexual harassment, the indications that plaintiff had falsified the injury report, and the additional factor that all of those events had occurred within the first three months of plaintiff's probationary period. On November 30, 1992, Bolden notified the Department of Personnel that he intended to terminate plaintiff effective December 15, 1992, and on December 2, 1992, he signed a letter informing plaintiff of the decision to terminate his employment as a probationary employee with the Department of Water.

[17]   During the period between plaintiff's alleged injury and the termination of his employment, plaintiff filed an "Application of Adjustment of Claim" (workers' compensation claim) with the Illinois Industrial Commission (IIC). He apparently did not inform anyone at the city that he had done so, and it is unclear when the city received notice of that filing. The city claims that none of the people involved in the decisions that led to plaintiff's discharge were aware, at the time the decisions were made, that plaintiff intended to file or had already filed a claim with the IIC. In his affidavit, Commissioner Bolden stated that at the time of the termination decision, he had no knowledge or information that plaintiff intended to file or had filed a workers' compensation claim. Foreman Green stated in his affidavit that when he submitted the reports and his memorandum regarding plaintiff's on-the-job conduct, he had no knowledge or information that plaintiff intended to file or had filed a workers' compensation claim. The city subsequently settled plaintiff's worker's compensation claim with a lump-sum payment.

[18]   On or about September 3, 1993, plaintiff filed this lawsuit. Plaintiff alleged that he was discharged in retaliation for exercising his rights under the Workers' Compensation Act. After discovery, the city filed its first motion for summary judgment, arguing that plaintiff had come forward with no evidence that he was discharged in retaliation for filing a workers' compensation claim. The circuit court granted the city's motion. In Cross I, we reversed the judgment of the circuit court and held that a retaliatory motive could be inferred from the timing of plaintiff's termination and that the city's settlement of plaintiff's workers' compensation claim was at least some evidence that he was not terminated for filing a fraudulent claim, but in retaliation for exercising his rights. Cross I, slip op. at 9-10. The matter was remanded for the resolution of that question of fact. Cross I, slip op. at 10.

[19]   On remand, plaintiff filed a motion for partial summary judgment, and the city filed a second motion for summary judgment. The city argued that it is immune from liability for the commissioner's discretionary policy choices regarding whether to terminate probationary personnel. The circuit court initially denied the city's motion. After the city ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.