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Holland v. Schwan's Home Service, Inc.

Court of Appeals of Illinois, Fifth District

May 30, 2013

LARRY W. HOLLAND, Plaintiff-Appellee,
SCHWAN'S HOME SERVICE, INC., Defendant-Appellant (The Schwan Food Company, Schwan's Shared Services, LLC, and Gary Young, Defendants).

Rehearing denied July 1, 2013.


In an action arising from a back injury claimant suffered at work, the evidence supported the jury’s finding that claimant was terminated from his position in retaliation for exercising his rights under the Workers’ Compensation Act and the award for compensatory and punitive damages was upheld.

Appeal from the Circuit Court of Franklin County, No. 09-L-56; the Hon. E. Kyle Vantrease, Judge, presiding.

Michael F. Dahlen, of Feirich/Mager/Green/Ryan, of Carbondale, Robert E. Arroyo, of Jackson Lewis LLP, of Chicago, and Alan L. Rupe and Richard A. Olmstead, both of Kutak Rock LLP, of Wichita, Kansas, for appellant.

Thomas F. Crosby, of Winters, Brewster, Crosby & Schafer, LLC, of Marion, for appellee.

Panel JUSTICE STEWART delivered the judgment of the court, with opinion. Justice Goldenhersh concurred in the judgment and opinion.



¶ 1 This case involves a lawsuit filed by the plaintiff, Larry W. Holland, alleging that his former employer, Schwan's Home Service, Inc. (Schwan's), terminated his employment in retaliation for his exercising his rights under the Illinois Workers' Compensation Act (the Act) (820 ILCS 305/1 to 30 (West 2008)). After a seven-day trial, a jury returned a verdict in Holland's favor on his retaliatory discharge claim, awarding him a total of $4, 260, 400 in compensatory and punitive damages. The punitive damages portion of the award was $3.6 million.

¶ 2 Throughout the trial court proceedings, Schwan's denied Holland's assertion that it terminated his employment. Instead, it maintained that when Holland recovered from his work accident and was ready to return to work, it offered him an available position at the facility where he previously worked, but he refused to report for work. At several stages of the lower court proceedings, Schwan's requested the circuit court to decide the issue of whether it had terminated Holland in its favor as a matter of law, rather than submitting the issue for the jury to decide. Prior to the trial, Schwan's made this request in a motion for summary judgment that the circuit court denied. After the conclusion of Holland's case in chief, it made the request again in a motion for a directed verdict. Again, the circuit court denied the motion. In denying Schwan's motion for a directed verdict, the circuit court found that Holland had presented sufficient evidence for the jury to conclude that he was terminated. It noted that Schwan's was "free to argue to the jury" that Holland was not terminated, but it was "up to the finder of fact to make that determination." Finally, after the jury considered the evidence and entered a verdict in Holland's favor, Schwan's raised this issue again in a posttrial motion requesting the circuit court to enter a judgment notwithstanding the jury's verdict (judgment n.o.v.). The circuit court again denied Schwan's request.

¶ 3 Schwan's now appeals the judgment entered on the jury's verdict and argues that the circuit court should have entered a judgment n.o.v. in its favor because the evidence conclusively established that it did not terminate Holland's employment. Schwan's also advances alternative arguments under a judicial estoppel theory and a standing theory and takes issue with the circuit court's jury instructions, certain evidentiary rulings, and the amount of the jury's award for compensatory and punitive damages. For the following reasons, we affirm.


¶ 5 The legislature enacted the Workers' Compensation Act as a compromise between employers and employees with respect to compensation for work-related injuries. Under the statutory scheme, employees gave up their common law right to sue their employers in tort, but gained the right to recover for injuries arising out of and in the course of their employment without regard to fault. Kelsay v. Motorola, Inc., 74 Ill.2d 172, 180, 384 N.E.2d 353, 356 (1978). Employers gave up their common law defenses to claims involving work-related accidental injuries or death, but their liability became fixed under the statutory scheme. Id. The ability of this statutory scheme to provide efficient and expeditious remedies for injured workers would be seriously undermined if employers could simply terminate or threaten to terminate employees for seeking their rights and remedies under the statute. Id. at 181, 384 N.E.2d at 357. "[W]hen faced with such a dilemma many employees, whose common law rights have been supplanted by the [Workers' Compensation] Act, would choose to retain their jobs, and thus, in effect, would be left without a remedy either common law or statutory." Id. at 182, 384 N.E.2d at 357.

¶ 6 In 1975, the legislature amended the Workers' Compensation Act to include section 4(h), which expressly prohibits an employer from discharging an employee because the employee exercises his rights or remedies granted to him under the Act. Pub. Act 79-79, § 1 (eff. July 1, 1975). In the present case, in order for Holland to succeed in his claim against Schwan's for retaliatory discharge, he had to prove to the jury that he was an employee before his injury, that he exercised a right granted by the Workers' Compensation Act, that he was discharged by Schwan's, and that his discharge was causally related to his filing a claim under the Workers' Compensation Act. Clemons v. Mechanical Devices Co., 184 Ill.2d 328, 335-36, 704 N.E.2d 403, 406 (1998). As noted above, Schwan's takes issue with the jury's finding that Holland proved that it discharged him from his employment.

¶ 7 Schwan's challenge to the "discharge" element of Holland's claim is presented to us on appeal by way of Schwan's argument that the circuit court erred in denying its motion for a directed verdict and/or its motion for a judgment n.o.v. "Although motions for directed verdicts and motions for judgments n.o.v. are made at different times, they raise the same questions and are governed by the same rules of law." Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 37, 983 N.E.2d 414. Our review of the circuit court's denial of Schwan's request for a judgment n.o.v. requires us to consider all of the evidence and reasonable inferences in the light most favorable to Holland to determine whether there was a total failure or lack of evidence to prove the discharge element of his claim. Id. This standard is a high one. Id. Accordingly, in discussing the background relevant to Schwan's contention on appeal, we look at the trial evidence in the light most favorable to Holland and with all reasonable inferences construed in his favor on the issue of whether Schwan's terminated his employment. If reasonable minds differ concerning inferences or conclusions to be drawn from the evidence, entry of a judgment n.o.v. is not appropriate. Id.

¶ 8 Schwan's is in the business of marketing and distributing a variety of frozen food products to consumers for home consumption. Holland began working for Schwan's on July 12, 2004, as a "district project manager." However, he held that position for only two months before Schwan's discontinued this position. Schwan's then offered Holland a position as a "sales supervisor." As part of his duties as a sales supervisor, Schwan's trained Holland in its employment procedures. Holland explained to the jury that, for job transfers within the company, Schwan's employment procedures included a website that employees could log onto using their employee number. Once logged on, an employee was able to review any internal offers extended to employees for job reassignments. The information available on the website included a written internal offer, the compensation package, vacation benefits, and other information related to the new position being offered. According to Holland, a written "internal offer" was the customary way Schwan's internally moved its employees from one position to another. When Schwan's eliminated Holland's district project manager position in 2004, it notified him of his transfer offer to the sales supervisor position by issuing him a written internal offer.

¶ 9 Holland worked for Schwan's as a sales manager until July 2006, when Schwan's discontinued that position. Schwan's then offered Holland the position of "facility supervisor" at its depot in West Frankfort, Illinois. This was the position that Holland occupied when he was involved in his work-related accident that occurred in August 2008. Again, when Schwan's transferred Holland to this new position, it issued him another written internal offer. The written "Internal Offer Letter" was admitted into evidence at the trial, and it included a summary of the offer's terms and conditions and a line for Holland to sign as his acceptance of the offer. Holland indicated that he was familiar with "all the different parts" of Schwan's internal offer letters because they were the customary way that Schwan's moved someone from one position to another and because his reassignment in July 2006 was the second time he had received a written internal offer letter from Schwan's. He also testified that he continued to receive a salary from Schwan's during his transition from sales supervisor to facility supervisor.

¶ 10 Holland's duties as the facility supervisor at the West Frankfort depot included managing the facility, maintaining inventory, managing the movement of goods in and out of the facility, and managing and helping the employees (material handlers) who physically handled and moved the goods in and out of the facility. He was responsible for keeping track of inventory, both stored in the depot's storage freezer and loaded onto the depot's delivery trucks. In managing inventory, he was responsible for controlling the amount of goods that inexplicably disappeared from the depot's inventory (shrinkage) and the amount of goods that could not be sold to consumers because of defects (damage). He was also responsible for the maintenance of the depot property and delivery trucks. At the end of his workday, he was responsible for mowing the depot's yard if necessary, mopping floors, and emptying trash. Holland worked at night. Typically, he arrived at work at 11 p.m. and worked until his daily tasks were completed, sometimes until 8 a.m. and many times past 10 a.m.

¶ 11 During his time as the facility supervisor at the West Frankfort depot, he managed two material handlers who also worked at the depot, Tom Pietrantoni and Chris Owens. The two material handlers worked at night along with Holland and were involved with unloading products from semitrucks into the depot's storage freezer, inventorying the products in the freezer, loading products from the storage freezer onto the delivery trucks, and inventorying the products on the delivery trucks. As the facility supervisor, Holland's job duties required him to perform all of the same functions that the material handlers performed, working with them side by side, including unloading and loading trucks and handling products in the freezer.

¶ 12 When Holland began working as the facility supervisor for the West Frankfort depot, his immediate supervisor was Mick Heggaton. Heggaton was employed by Schwan's as the "location general manager" of the West Frankfort, Illinois, depot. The location general manager's duties included overseeing sales and making sure that the depot was running smoothly. The location general manager (Heggaton) and facility supervisor (Holland) both reported to Schwan's district general manager, Steven Wolfenbarger. As a district general manager, Wolfenbarger was in charge of overseeing sales and operations in a district that encompassed parts of Illinois and Indiana, including the West Frankfort depot. A regional operations manager, Doug Crider, was responsible for operational decisions and profit decisions within a geographic region that included the West Frankfort depot. Crider's authority included decisions concerning how many employees could be employed at the West Frankfort depot and how many hours the employees could work.

¶ 13 After the end of each year, the location general manager was responsible for conducting an evaluation of the facility supervisor's job performance for the year. Schwan's yearly evaluation form included ratings for specific performance factors and an overall performance rating. The rating choices for each performance factor and for the employee's overall performance were one of four options: (1) exceeds expectations, (2) meets expectations, (3) some improvement required, or (4) does not meet expectations. In addition, the evaluation forms contained an area for the employee to write his own comments.

¶ 14 According to Holland, the yearly performance evaluation had to be completed before the end of March of the following year. Prior to the evaluation, the employee had to submit a self-critique sheet to his supervisor. The employee submitted the self-critique sheet by mid-February. The supervisor then filled out the evaluation form, went over the previous year's goals and performance with the employee, and established performance goals and objectives for the upcoming year.

¶ 15 For 2006, Heggaton rated Holland's overall performance as "some improvement required." Heggaton noted in the report that Holland assumed the facility supervisor position in July 2006 and was developing at an acceptable pace, but still needed to improve in some areas, including the development of his workforce into a more organized team. Holland did not write any comments in the employee comment section of the 2006 evaluation. He testified, "We both understood that there was no way I was going to be able to convert Mr Owens, so there was no reason to make any comment." The 2006 evaluation was signed and dated by Heggaton and Holland on March 6, 2007.

¶ 16 Early in 2008, prior to the completion of the 2007 yearly evaluation, the location general manager at the West Frankfort facility changed from Heggaton to Ryan Underwood. In March 2008, Underwood completed Holland's yearly evaluation for 2007. Underwood and Holland signed the 2007 evaluation on March 13, 2008. Underwood rated Holland's overall performance in 2007 as "some improvement needed." In the employee comments section, Holland noted that the evaluation was based on four months of observation and that he had not been formally trained for his position, but had plans in place to get on-the-job training from an experienced facility supervisor. At the time of the annual review, Schwan's presented him with two awards for his performance in 2007: one for meeting his goals in managing inventory (damage and shrinkage) and another for meeting his goals for labor hours. Also, effective March 2, 2008, Schwan's awarded Holland a 2% raise in his salary.

¶ 17 On Friday, August 22, 2008, Holland and the material handlers, Pietrantoni and Owens, were in the process of unloading goods from a semitruck into the depot's freezer when Holland slipped on some ice and fell on his back. He continued to work and finished the shift. Initially, he did not seek any medical attention. He hoped to make it through the weekend without any problems. However, on Monday, August 25, 2008, he decided that he needed to seek medical attention.

¶ 18 Dr. Lueking examined Holland's back, diagnosed his back injury, and suspected a possible ruptured disc. Dr. Lueking concluded that Holland could return to work with the following restrictions on his work duties: "no heavy lifting, no prolonged standing and should be on light duty only with minimal driving."

¶ 19 At the time of Holland's accident, a company called Schwan's Shared Services, LLC (Shared Services), provided Schwan's with a number of management services, including workers' compensation specialists who managed Schwan's workers' compensation claims. The workers' compensation specialists' duties included coordinating with Schwan's workers' compensation insurance carrier, Hartford Insurance Company (Hartford), and with Hartford's third-party administrator, Specialty Risk Services (SRS). SRS administered workers' compensation claims on behalf of Hartford.

¶ 20 On August 25, 2008, one of Shared Services' workers' compensation specialists, Eva Bruns, opened a "leave of absence" file to document actions and communications concerning Holland's work-related injuries, treatments, and workers' compensation benefits. Bruns did not testify at the trial, but her notes that she made in the leave-of-absence file were admitted into evidence. When Bruns opened the leave-of-absence file on Holland's injury, she noted Holland's work restrictions in the file. Testimony at the trial indicated that Holland's work restrictions were coordinated between the workers' compensation specialist and the location general manager and that it was their responsibility to see that Holland worked within his restrictions.

¶ 21 Schwan's claims that, beginning on August 25, 2008, it placed Holland in its "temporary alternative duty" (TAD) program. The purpose of Schwan's TAD program is to provide injured workers with temporary job duties within their medical restrictions if such work is available. Typically, Schwan's allowed an employee to be in the TAD program for 90 days, but it also allowed extensions depending on the employee's situation, including whether he was improving or close to returning to full duty.

¶ 22 As long as the employee continued to work through the TAD program, Schwan's would not discharge the employee because he could not perform full job duties. The Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. § 2601 (2006)) also provided Holland with up to 12 weeks of unpaid leave of absence for medical reasons. Schwan's, however, determined that it could begin running the clock on Holland's FMLA protection while he was on light duty. Therefore, once Schwan's placed Holland in its TAD program, it began to run the clock on the 12-week leave that he was entitled to under FMLA.

¶ 23 When Holland discussed his work restrictions with his supervisor, Ryan Underwood, Underwood told him, "that is fine, as long as the job gets done." Under Schwan's TAD program, it was the responsibility of the location general manager on duty to make sure that the duties assigned to an injured facility supervisor did not exceed his job restrictions. One of Shared Services' workers' compensation specialists testified at the trial, "Our managers know that they need to keep their employees within those restrictions."

¶ 24 Even though Holland was placed in Schwan's TAD program, Underwood did not take any action to modify Holland's job duties and did not take over any of his duties that fell outside his work restrictions. Although he was supposed to be in the TAD program, Holland's job duties did not change; he had to complete all of the same tasks that he did before the accident. The duties included working side by side with the material handlers, lifting items over 25 pounds when loading delivery trucks and moving goods in the freezer, hanging with one hand on a delivery truck's side rails while loading goods, and rearranging goods onto 15 delivery trucks. In addition, Holland endured prolonged standing, bending, and twisting during the loading and unloading of goods, when refueling the delivery trucks, and while inventorying the delivery trucks. These were all activities that fell outside Holland's light-duty work restrictions. Holland testified that the facility supervisor position involved only a small amount of managerial work that was performed in front of a computer in a sitting position.

¶ 25 In September 2008, Holland followed up with his treating physician, and his doctor continued the previous light-duty restrictions. On September 19, 2008, his doctor referred him to a neurosurgeon. In the doctor's slip dated September 19, 2008, the doctor wrote that Holland's light-duty restrictions should continue "for the next 30 days." On October 17, 2008, his treating physician continued the light-duty restrictions with additional restrictions that included no lifting greater than five pounds and no prolonged exposure to cold temperatures.

¶ 26 Each time Holland received new restrictions from a doctor, he presented the written restrictions to his immediate supervisor and faxed a copy to the workers' compensation specialist handling his case. However, at this point, no one within Schwan's organization modified Holland's job duties to comply with the restrictions or offered him extra help so that he did not have to perform the duties outside his work restrictions. He continued to perform all of the same duties he was required to perform prior to the accident.

¶ 27 As Holland continued to perform job duties outside his work restrictions, his back condition and symptoms became worse, and he began experiencing numbness in his legs. On December 1, 2008, Holland was examined by a neurosurgeon, Dr. Vaught, who diagnosed Holland as having strained his back muscles and suffering from a bulging disc. Dr. Vaught's job restrictions for Holland at that time included restricting him from lifting over 25 pounds and from performing repetitive bending, stooping, and kneeling. In addition, Dr. Vaught prescribed physical therapy.

¶ 28 Again, Holland presented Dr. Vaught's new restrictions to his supervisor, Underwood, and complained to Underwood that the condition of his low back was becoming severe. He explained that he was having a particularly hard time working in the freezer because of the amount of weight that had to be lifted while working in the freezer. In addition, he explained that the temperature in the freezer caused him to shiver which, in turn, caused his back muscles to tense up and aggravate his back injury.

¶ 29 In mid-December, Underwood finally began relieving Holland, but only by assisting the material handlers, Pietrantoni and Owens, with unloading goods from semitrucks into the depot's freezer when semitruck deliveries arrived at the depot. Semitruck deliveries arrived, on average, every eighth day. Holland had to continue performing all of the other tasks required of a facility supervisor, including all of the other activities that involved repetitive bending, twisting, prolonged standing, and lifting over 25 pounds. As a result, Holland's work-related back injury did not get any better after Underwood began helping on the days the semitrucks made deliveries. Also in mid-December, Holland called Bruns for authorization for the physical therapy that Dr. Vaught had prescribed, but he did not receive an immediate authorization for the physical therapy. Therefore, no physical therapy appointments were made at that time.

¶ 30 Near the end of December 2008, Schwan's district general manager, Wolfenbarger, had determined that Underwood was unable to perform the duties of the location general manager at the West Frankfort depot. Accordingly, Wolfenbarger removed Underwood from that position and reassigned him to a new position as a Schwan's route salesman in Indiana. There was no time gap between Underwood's reassignment of positions. As soon as Wolfenbarger removed Underwood from the location general manager position, Underwood immediately began his new position as a route salesman.

¶ 31 In January 2009, Wolfenbarger assigned Gary Young to serve as the location general manager at the West Frankfort facility. Young testified that when Wolfenbarger assigned him to the West Frankfort facility, he did not mention any issues with respect to Holland's job performance. After Young began working as the location general manager at the West Frankfort facility, Holland's duties did not change. He informed Young of his job restrictions and that Underwood had been helping with the unloading of semitrucks. When he arrived, Young also began helping with the unloading of semitrucks on delivery days, but Holland had to continue performing all of the other duties of a facility supervisor. Young testified that he helped unload semitrucks on delivery days the entire time Holland was the facility supervisor.

¶ 32 At the trial, Young acknowledged that it was his responsibility to see that Holland was not assigned duties outside his medical restrictions. However, he testified that he was not present at the depot at night when Holland worked to ensure that he did not exceed the restrictions. He also testified that one of the material handlers, Owens, was injured in January and in February, and Schwan's had to hire temporary help. Holland testified that Schwan's did not approve any extra help at the depot until two weeks after Owens went on light duty.

¶ 33 By mid-January, Holland still had not received the authorization that he requested from Bruns for him to attend physical therapy. Around January 14, 2009, Holland received a telephone call from Joan Kantor, who was the SRS workers' compensation adjuster who was handling his claim on behalf of Hartford. Kantor asked Holland about his physical therapy. Holland told Kantor that he had not yet received any authorization for physical therapy. In addition, he informed Kantor that his ability to attend physical therapy was limited at that point in time because, the week before, one of his material handlers, Owens, was injured and was on leave which left only him and Pietrantoni to operate the West Frankfort depot.

¶ 34 When Bruns later learned from Kantor that Holland had not attended any physical therapy, she contacted his treating physician, Dr. Vaught, without Holland's knowledge, and attempted to convince the doctor to release Holland back to work full duty on the basis that he had not followed through with the prescribed physical therapy. Dr. Vaught rejected this request and told Bruns that he would not release Holland to work full duty without conducting a reassessment of his injuries. On January 16, 2009, Bruns sent an e-mail to Holland concerning his failure to attend physical therapy. She told Holland in her e-mail that his failure to attend physical therapy was unacceptable and that he should follow up with his doctor "ASAP."

¶ 35 Holland responded to Bruns's e-mail on the same day. He told Bruns that he would follow up with his doctor right away, but that his work and home life did not leave time for physical therapy. He noted that he was down to one material handler and that he would not be getting any help "during the regular load week, just the semi, while he is gone." He believed that Pietrantoni would quit if he was left to handle all of the duties by himself in order to accommodate Holland's physical therapy. Holland also wrote, "Doing my job and supporting my coworkers and the drivers here is very important to me and that is why I have continued to work during this injury." He added, "if you have another solution, I would be happy to implement it."

¶ 36 Bruns did not respond with "another solution" to accommodate physical therapy. Instead, the district general manager, Wolfenbarger, sent Holland and Bruns an e-mail that same day wanting to know what physical therapy appointments Holland had missed. He expressly questioned whether Owens' injury could have caused Holland to miss any physical therapy appointments. In the e-mail, Wolfenbarger told Bruns to "[c]heck the date and time of the appointment and correspond it with the [material handler's] injury." Wolfenbarger concluded his e-mail by chastising Holland as follows: "Missing [physical therapy appointments] that are usually scheduled after 8:00 a.m. should never be blamed on work hours that do not interfere."

¶ 37 Holland, however, explained to the jury that he had not missed any physical therapy appointments. Because physical therapy had not been authorized, no physical therapy appointments had been made. In addition, Holland disagreed with Wolfenbarger's statement that his work was irrelevant because physical therapy appointments were usually after 8 a.m. He explained to the jury that when he got off work, usually after 10 a.m., he was responsible for taking care of his son the rest of the day and later had to pick up his daughter from grade school. He was not able to sleep until his wife got home from work around 5:30 p.m. or 6:30 p.m.

¶ 38 On January 26, 2009, Holland followed up with Dr. Vaught, and he apparently agreed that Holland's work schedule was relevant to his physical therapy. Dr. Vaught modified Holland's job restrictions so that he was not to work more than six hours on the days he had physical therapy appointments. Dr. Vaught wanted the claimant to be home by 5 a.m. on the days that he had physical therapy so he could get some sleep before his appointments. Dr. Vaught also prescribed an injection, a left L4-L5 facet block, for Holland's back pain.

¶ 39 Holland testified that immediately after the January 26, 2009, appointment with Dr. Vaught, he set up appointments for the physical therapy and the injections. However, when he discussed Dr. Vaught's modifications of his job restrictions, Young did not agree to any change in his work schedule to accommodate his physical therapy appointments.

¶ 40 The day after Holland's follow up appointment with Dr. Vaught, January 27, 2009, Bruns noted the new work restrictions in Holland's leave-of-absence file, and she contacted Kantor over the telephone. In her file, Kantor noted the telephone call from Bruns as follows: "Rcvd call from eva, she just rcvd note from [physician's assistant] at dr ofc, that gives ee even more restrictions than he had before, saying he can only work 6 hours on days he has pt. restricts lifting etc. it is time for [an independent medical examination]. ee has been on [light duty] for over 150 days & he knows his head is on the chopping block." Bruns also sent an e-mail to Young outlining Holland's new work restrictions.

¶ 41 That same day, January 27, 2009, Wolfenbarger contacted one of Schwan's human resource generalists, Daryl Overstreet, to find out whether Holland had exhausted his FMLA leave. As a result of his conversation, Overstreet sent an e-mail to Schwan's leave-of-absence administrator, Connie Litchtsinn, asking her if she could verify if Holland had "exhausted his FMLA." Overstreet added, "Wolfenbarger has a similar situation with Chad Otto, [and] wishes to replace [Holland] if possible." At the trial, Wolfenbarger testified that Chad Otto was an employee in Indiana who had hurt his shoulder in an accident that was unrelated to work and was on medical leave. Young testified that he had no knowledge of Wolfenbarger's inquiries to Overstreet on January 27 or that they were otherwise discussing Holland in January 2009.

¶ 42 Because Litchtsinn only managed leaves of absence that were unrelated to occupational injuries, she directed Overstreet to ask Bruns about Holland's FMLA leave because he was on "work comp" leave. The next day, Bruns sent an e-mail to Overstreet stating that because Holland's "FMLA ran out last year, we should be OK to replace Mr. Holland's position." She added that an independent medical examination (IME) of Holland was being set up "to address all the issues that seem to prevent his return to work full duty." On January 29, 2009, Kantor sent Holland a letter informing him that she had scheduled an IME to be conducted by Dr. Hayward on February 13, 2009.

¶ 43 On February 5, 2009, the organization that handled FMLA leaves on behalf of Schwan's, The Reed Group, confirmed to Bruns and Overstreet that Holland had exhausted his FMLA leave as of October 26, 2008. On February 6, 2009, The Reed Group then sent out an "exhaustion letter" to inform Holland that his FMLA leave had expired back on October 26, 2008. Upon receiving the confirmation concerning Holland's exhaustion of FMLA leave, Overstreet sent an e-mail to Bruns on February 6, 2009, inquiring whether Holland's IME had been completed "to address the issues preventing his return to full duty."

¶ 44 On the same day, February 6, 2009, Wolfenbarger completed Holland's annual review for 2008. Overstreet could not remember whether he told Wolfenbarger that he had received confirmation that Holland's FMLA leave had been exhausted, and Wolfenbarger denied knowing that Holland's FMLA leave was exhausted when he completed the 2008 annual review. Nonetheless, on February 6, 2009, Bruns notified Young that a letter had been sent out to Holland notifying him that his FMLA leave had been exhausted.

¶ 45 Wolfenbarger testified that he had to fill out Holland's 2008 evaluation because Underwood had been Holland's immediate supervisor for most of 2008, but he was no longer the location general manager of the West Frankfort facility. Holland, however, testified that Wolfenbarger did not have an opportunity to observe his work duties in 2008. In addition, as noted above, previous evaluations were not completed until March and not until the employee had submitted a self-critique sheet to his supervisor. Wolfenbarger not only completed Holland's 2008 evaluation a month early, but he also completed it without giving Holland an opportunity to submit a self-critique sheet.

¶ 46 In his evaluation, Wolfenbarger rated Holland's overall performance at the lowest rating possible: "does not meet expectations." Wolfenbarger did not go over the evaluation with Holland as was the customary practice for end-of-year evaluations. Instead, he sent it to the West Frankfort depot, where Young handed it to Holland for him to sign. Holland signed it on February 11, 2009, the day before he was scheduled to leave for a one-week vacation. He wrote in the employee comment section as follows:

"I am personally very disappointed in this evaluation particularly those unobserved areas of performance related to People Development, Strategy [and] Planning [and] Quality of work. I have spoken to Gary Young [and] asked him to work with me on a comprehensive plan to improve overall performance [and] meet Company established sales related goals." (Emphasis in original.)

¶ 47 Wolfenbarger initially told the jury that he had prepared the evaluation on February 6, then sat down with Holland at the West Frankfort depot and personally went over the evaluation with him on February 11, when Holland signed it. He later recanted that testimony and admitted that he never met with Holland to go over the evaluation. Instead, Holland met with Young to sign the 2008 evaluation on the morning of February 11 after he worked his shift that night. Young then faxed the signed evaluation to Wolfenbarger, who then signed the faxed copy with Holland's signature. Holland testified that he did not discuss any goals and objectives for 2009 with anyone during this 2008 evaluation process. The area on the 2008 evaluation form for writing 2009 goals and objectives was left blank by Schwan's.

¶ 48 At the trial, Wolfenbarger also denied having knowledge of Holland's workers' compensation claim at the time he evaluated Holland's 2008 performance. However, as noted above, in January 2009, one month prior to Holland's evaluation, Wolfenbarger had chastised Holland when he mistakenly believed that Holland had missed physical therapy appointments. The record also establishes that on February 9, 2009, the day of Wolfenbarger's evaluation, Bruns informed Young by e-mail that a letter had been sent to Holland to inform him that his FMLA leave had expired.

¶ 49 As noted above, in late January 2009, Kantor sent Holland a letter informing of him of the IME scheduled for February 13, 2009. Holland testified that he was receiving correspondence related to his work accident every couple of days, primarily from SRS. Because of the volume of the correspondence, he lost interest in opening and examining each correspondence and began stacking the unopened letters in a pile. In addition, in early February 2009, during the time that he would have received Kantor's letter, he was preparing to leave town for his vacation. He was scheduled to be off work from February 12 to February 19, 2009. Holland received Kantor's letter concerning the scheduled IME before he left for his vacation, but he put the unopened letter on top of the pile of the other unopened letters. He left for his vacation without knowing that the IME had been scheduled during his vacation. As a result, Holland missed the appointment for the IME.

¶ 50 On the same day of the missed appointment, Bruns, Kantor, Overstreet, Wolfenbarger, and Young all learned that Holland had missed the IME appointment. Overstreet sent an email to Young and Wolfenbarger stating that he wanted to "know asap why [Holland] did not show up for the appointment." On the same day, February 13, Kantor sent a letter to Holland that informed him that all further medical treatments and benefits under his workers' compensation claim were being denied and that Schwan's was no longer required to accommodate any job restrictions imposed by his treating doctor. Overstreet received a copy of the letter. On February 14, Young informed Overstreet and Wolfenbarger that Holland was on vacation as of February 12 and would be back on February 19 but that he should have made appropriate arrangements.

¶ 51 When Holland returned from his vacation, he went through his mail, opened Kantor's February 13, 2009, letter, and learned for the first time that he had missed the IME appointment. He then opened other envelopes that he had received from SRS and discovered Kantor's January 29, 2009, letter informing him of the appointment. Overstreet and Young spoke with Holland over the telephone and learned that there had been a miscommunication between Holland and Kantor. Young told Holland that he was required to come into work and report for full duty or he would have to sign a letter of resignation. Holland advised Young of the status of his medical treatments and told him that he was not going to risk further injury to his back.

¶ 52 Holland called Bruns Monday morning, February 23, 2009, and explained to her why he had missed the appointment. Bruns directed Holland to speak with Kantor to see if his IME could be rescheduled. At that time, his scheduled injections prescribed by Dr. Vaught were canceled because Kantor's letter informed him that no further medical benefits would be covered under his workers' compensation claim. On February 24, 2009, Kantor told Holland that she would reschedule his IME and would authorize his injections but that Schwan's did not have to accommodate his work restrictions.

¶ 53 On March 2, 2009, Bonita Skuya replaced Bruns as the Shared Services' workers' compensation specialist handling Holland's claim.

¶ 54 The IME was rescheduled for March 9, 2009, and Holland attempted to go to the IME on that day, but the appointment had to be rescheduled again to March 17, 2009, because the IME doctor had a family emergency. On March 20, 2009, Skuya received the report from the IME. Schwan's IME doctor agreed with Holland's treating physicians and believed that all of the recommended treatments were appropriate. He believed that both epidural steroid injections and physical therapy were necessary for treatment of Holland's work-related injury. In answering the question of whether Holland could return to work full duty, the IME doctor increased his job restrictions by restricting him from lifting anything over 15 pounds. Although the doctor said he could work in a cold environment, he continued the restrictions of no repetitive bending, stooping, and twisting. He believed that Holland would be able to return to full duty on the completion of the injections and the physical therapy.

¶ 55 Skuya forwarded the new restrictions to Young and Wolfenbarger in an e-mail dated March 23, 2009. Skuya wrote in her e-mail that, in her opinion, since Holland had said his work schedule was interfering with his ability to complete physical therapy, perhaps they should consider taking him totally off of work until he completed his therapy. She asked Young to advise on whether he agreed or whether they should allow Holland another 30 days in the TAD program. Young told Skuya not to take Holland off work because he needed the help and to extend Holland's TAD program another 30 days.

¶ 56 On March 24, 2009, Skuya sent a letter to Holland notifying him that, in light of the IME, Schwan's had granted him one final 30-day extension in the TAD program which would end on April 24, 2009. Skuya sent a copy of the letter to Kantor in an e-mail dated March 24, 2009. In her e-mail, Skuya wrote as follows: "I understand we cannot terminate him, just using this as a way to let him know he cannot continue along his same path." On March 31, 2009, after receiving her letter, Holland e-mailed Skuya because he had a question whether an L4-L5 facet block had been approved or whether an epidural steroid injection had been approved. He informed Skuya that his next doctor's appointment was scheduled for April 2, 2009.

¶ 57 On April 1, 2009, Skuya again e-mailed Kantor and reiterated that she had advised Holland that he had until April 21, 2009, to complete his physical therapy and return to work full time. Skuya asked Kantor in her e-mail, "How many times does he get to postpone this treatment before we say enough is enough?" Kantor responded that he was having his injection on April 2 and was to confirm where he was going to perform his physical therapy. She added: "If he continues to be non-compliant with the pt recommended both by his [treating doctor] and our ime [doctor], then we can try to deny further [treatment]. This is an Illinois claim & if he gets an atty, we will have a continued fight on our hands, but it will be his own fault."

¶ 58 Holland subsequently received his first epidural steroid injection on April 9, 2009, and received the second two weeks later. In addition, he started his physical therapy, which was scheduled to last through April 2009. Throughout April 2009, Holland did not miss any of his scheduled physical therapy appointments, and he complied with all of his treatment requirements. Skuya testified that she had no concerns about Holland's compliance with his treatment in April 2009, and she believed that the doctor would release Holland back to full duty on April 28, 2009. During this period of time, however, Schwan's required Holland to continue working beyond his medical restrictions even though it claimed to have put him in its TAD program.

¶ 59 Holland saw his treating physician on April 28, 2009. Instead of releasing Holland to full duty, the doctor took him completely off work until May 19, 2009, so that he could receive more aggressive physical therapy. The doctor believed that Holland was not healing, and the doctor was concerned that he was not able to sleep without medication. The treating physician's new restrictions were not well received by Schwan's.

¶ 60 Holland sent a text message to Young to inform him of the doctor's new restrictions, and Young e-mailed the new restrictions to Skuya. Wolfenbarger was copied in on Young's email to Skuya, and Young asked in the e-mail: "Our [sic] we going to now ask him to step aside from Facility Supervisor or not?" The next day, Skuya sent a response e-mail to Young and copied Wolfenbarger and Overstreet in on the e-mail. She advised Young that if he chose to replace Holland, he should work with Overstreet. She also advised Overstreet that since Holland had exhausted his FMLA protection, they were "safe to replace him." She concluded, "I find it extremely interesting that he has been taken completely off of work, when we were anticipating full duty release."

¶ 61 The next day, Skuya sent Kantor an e-mail in which she stated: "[M]y gut tells me to do some surveillance on him. What do you think?" In addition, Overstreet e-mailed Skuya that stated, "I am most certain from earlier conversations with [Young] that given the circumstances, he will probably wish to replace [Holland]." He asked Skuya, "Since you indicated [Holland] has exhausted his FMLA, if [Young] were to replace him, is this a situation where upon full duty release he could be offered whatever [Young] has available & have the option of securing another position within the company within 30 days?" In her response e-mail, Skuya wrote: "You are correct. If he is replaced as FS, he will be offered whatever position is available when he is returned back to full duty work." She speculated that Holland probably "knew it was coming" which was why "he is suddenly unable to work in any capacity."

¶ 62 On April 30, 2009, Kantor faxed the physician's restrictions to Skuya. The physician believed that Holland could return to full duty at the end of the aggressive physical therapy. Skuya forwarded the doctor's report to Young and Overstreet. Young sent the following response to Skuya and copied Wolfenbarger on his response: "The problem here is reliability. He has been playing this game for quite some time. I am looking for a long-term solution to this problem, not a short-term wait and see. Please advise." Skuya responded as follows: "I know you have been patiently waiting for him to recover. I would recommend you move forward doing what's best for your business." Young then forwarded Skuya's e-mail to Overstreet and Wolfenbarger and recommended that they remove Holland as the facility supervisor. Overstreet responded that because Holland had exhausted his FMLA, he agreed with Skuya to replace Holland as the facility supervisor based on business needs.

¶ 63 Skuya e-mailed Overstreet on April 30, 2009, and told him that she did not have the authority to change an employee's status, but that was something that Young would have to work out with payroll. She stated that the person taking over the position should be given the facility supervisor title and that Holland would then be changed to an "MH title."

¶ 64 In preparing the letter to send to Holland to notify him that his position was being reassigned to someone else, on May 7, 2009, Overstreet e-mailed Skuya and asked if the 30-day period that Holland had "to apply for another position would normally begin from the date he went out again for physical therapy, or the date he's able to return when physical therapy was completed, or the date we made the decision to reassign his position." Skuya responded that, in her opinion, they could not start the 30 days until he is capable of applying for and receiving a new position. Therefore, the 30 days should begin to run when he is released to return to full-duty work. At the trial, Skuya explained that if the 30 days began to run before he was off of work restrictions, that would lessen his chances of obtaining another job.

¶ 65 Overstreet e-mailed Skuya again on May 11, 2009, asking her the tentative date on which the 30-day period would begin to run. On May 12, 2009, Skuya e-mailed Overstreet that it would be hard to determine an appropriate date for full-duty release to return to work. She said that she would notify him when Holland was released to full-duty work so he could begin his notification process.

¶ 66 On May 15, 2009, Kantor requested authority from Skuya to increase the reserve amount necessary for handling Holland's claim. Because Holland's doctor had taken him off work for aggressive physical therapy, Schwan's was required to begin paying him temporary total disability (TTD) benefits. Kantor noted in her e-mail to Skuya, "since you have asked him to step aside as facility supervisor, I do anticipate he will retain an attorney." Skuya initially approved the reserve increase. However, on May 18, 2009, Skuya e-mailed Kantor that she had confirmed that Holland was entitled to 120 days of salary continuation while he was in physical therapy. Therefore, Skuya wrote, even though he was not working, he would be receiving his full salary until August 29, 2009. According to Skuya, the TTD check issued on May 15 would be an overpayment, and she asked Kantor if she could put a stop-payment on the check. In response, Kantor said that she informed Holland that he would receive a salary continuation and asked him to void the TTD benefit check from SRS. Holland voided the check as Kantor asked him to do. However, he never received a salary continuation through August 2009 and never received any TTD benefits when he was off work for the aggressive physical therapy program.

¶ 67 A note from Holland's physician dated May 19, 2009, stated that he was doing very well and that he would be ready to return to work full duty on Monday, May 25, 2009.

¶ 68 On May 19, 2009, Skuya sent Kantor an e-mail as follows: "Get ready for a battle. His position has been reassigned, and he will be given 30 days to accept another position or he will be terminated." Kantor responded that it looked like he should return to work on May 25, 2009, and Skuya replied: "Right, but there is no position for him there. He has to apply for, and receive, another position elsewhere, or they will process his termination." Skuya wanted to know if Holland would be entitled to a continuation of his salary during the 30 days while he looked for another job. She also learned from Schwan's human resources department that Holland would not be entitled to a continuation of his salary after he was returned to full duty on May 25, 2009.

¶ 69 Also on May 19, 2009, Skuya sent an e-mail to Young and Overstreet notifying them that Holland would be eligible to return to work on Monday, May 25, 2009, and that Holland had 30 days from May 25, 2009, to find another position within the company or be terminated. Overstreet advised that he was preparing the notification letter to send to Holland by certified mail. He knew at that time that Holland would not be entitled to any salary after May 25, 2009.

¶ 70 On May 20, 2009, Overstreet sent the notification letter to Holland concerning the reassignment of his facility supervisor position. The letter states as follows:

"This letter will serve as formal notice that based on your performance and a record of unreliability, you no longer qualify for the position of Facility Supervisor at the Schwan's Home Service West Frankfort, IL depot for the reason of Unable to perform essential job functions[.] Upon your full duty release to work on May 25th, 2009, you will have a period of 30 days (5/25/09 to 6/23/09) to apply for other positions as they are posted.
If you should not find another position by your job elimination date, your employment will be terminated.
It is my sincere hope that you will take advantage of the opportunity to pursue other employment opportunities within Schwan's Home Service, Inc. or another subsidiary of The Schwan Food Company. Feel free to contact me if you have any further questions."

¶ 71 Wolfenbarger and Crider made the decision to remove Holland as the facility supervisor. Overstreet testified that back on May 5, 2009, Schwan's regional manager, Crider, told him that he had approved a new material handler position for Holland at the West Frankfort facility. Crider was the regional manager and was responsible for approving all operations positions and hours allotted. It was a special position made available only to Holland and was never posted as a job opening. According to Overstreet, Crider approved it as a full-time position, 40 hours a week. However, at the trial, Schwan's did not produce any internal emails, communications, an "Internal Offer Letter, " or other evidence to show that Crider created a material handler position for Holland in early May 2009. It attempted to prove this fact to the jury only through Overstreet's testimony at the trial.

¶ 72 However, Overstreet's May 20, 2009, letter made no mention of a material handler position being available to Holland. Instead, the letter instructed him to apply for whatever positions might be available as posted. Overstreet testified at the trial that the letter was the start of an "interactive process" that was an exchange of communications related to the plaintiff returning to work.

¶ 73 Young and Skuya both received a copy of the notification letter. On May 22, 2009, Skuya e-mailed Young to ask him "if he even has any MH positions open." Also on May 22, 2009, Kantor generated a workers' compensation status report concerning Holland's claim. With respect to Holland's return-to-work status, she wrote in the report that his job had been reassigned and that when he reached maximum medical improvement, he will have to reapply for a job, possibly at a new location. Under the "Disposition Plan, " Kantor wrote that she anticipated that Holland would obtain an attorney due to his termination or lack of position. At this time, Skuya knew that if a job was no longer available to Holland when he was released back to full duty, he would be entitled to TTD benefits.

¶ 74 Holland received Overstreet's letter on May 22, 2009, and called Overstreet later that day. Holland's notes from his telephone conversation indicate that Overstreet told Holland that there was a material handler position open at the West Frankfort facility. Holland testified, however, that Overstreet said that the only way he could return to employment with Schwan's was to reapply for another position and that he was not to return to work until he had been accepted by Schwan's and the location general manager. Holland's notes from that conversation state, "Do not return until you apply for MH position [and] are accepted by Schwan's/LGM." Holland's notes further state that he must contact Young "on Monday 25 May to get further info" when he returns from vacation.

¶ 75 Holland testified that he did not believe that his conversation with Overstreet was a job offer because he had not received a formal internal offer from Schwan's. Holland also testified that he knew from his personal experience at the West Frankfort depot that another material handler position was not needed there. He testified that as the facility supervisor, he had been "berated" by Crider for giving the two material handlers already assigned to the depot 40-hour workweeks and that he did not have enough hours to give two of them a 40-hour week. Based on this experience, he did not believe that Schwan's was "going to be able to employ another material handler, certainly not a full time material handler."

¶ 76 Holland called Overstreet a second time on May 22 to discuss a continuation of his salary during the 30-day period he was given to find another job. Overstreet told him that his supervisor, Jeff Booth, had not approved a salary continuation during the 30-day period. As noted above, however, Kantor had asked Holland to void his May 2009 TTD disability benefits check and told him that he would receive a salary continuation through August 19, 2009. On May 26, 2009, Holland voided the TTD benefits check and sent it back to Kantor as she requested.

¶ 77 The next day, May 27, 2009, Overstreet called Holland and told him that Schwan's was denying him any salary continuation during the 30-day period. Overstreet again told Holland to contact Young about the material handler position. Holland asked about his health benefits during the 30-day period, and Overstreet said he would check on that for him.

¶ 78 Also, on May 27, 2009, Skuya sent another e-mail to Young, with a copy to Overstreet, again inquiring whether there were any positions available for Holland and, if so, whether they offered them to him. Young responded that he had not had any contact with Holland, and he further wrote, "At this point in time I have no available MH positions." The record does not contain any response e-mail from Overstreet clarifying that Crider had approved a material handler position especially for Holland earlier that month. At the trial, Young testified that he was unaware that Schwan's had created a material handler position for Holland.

¶ 79 Holland testified that on May 27, 2009, he checked Schwan's website, described above, where Schwan's posted internal job openings and where employees could go to apply for internal job transfers. The website listed a material handler position, but he could not apply for it and could not obtain any information about it online. At 7:55 p.m. that evening, he called Young to inquire about the position, and Young informed him that he was not sure that the position existed and would have to call him back on May 28, 2009. On May 28, 2009, Young called Holland back and informed him that there was a material handler position open at the West Frankfort depot that was being offered only to him.

¶ 80 On June 2, 2009, Skuya received notice that Holland had retained a workers' compensation attorney. In forwarding the attorney's information to Kantor, Skuya indicated that she had received an e-mail from Young that Holland had contacted him but had made no effort to return to work. Skuya asked Kantor, "If there is a position available and we offer that position to him in writing and he does not accept, does that lessen the amount of wage differential he will be entitled to?" Kantor replied: "Yes. Offer away."

¶ 81 On June 3, 2009, Skuya called Young, and he told her about the material handler position that was created for Holland and that Holland was aware of the position. Holland, however, had not accepted or declined the offer. Skuya then spoke with Overstreet, and he agreed that a letter should be sent so they had written proof that a position was offered to Holland. Skuya agreed to send the letter. Skuya then prepared a letter to Holland and sent it to Kantor and Overstreet for their review before she sent it to Holland. She testified that she sent the letter to Kantor so that Kantor knew that Holland had a job to return to for purposes of Schwan's liability for TTD benefits.

¶ 82 Skuya's letter to Holland was dated June 4, 2009, and it stated as follows:

"You were released by your treating physician to return to full duty work effective May 25, 2009. At that time, you were notified that your pre-injury position had been reassigned and you were given 30 days to obtain another position within the company.
I understand there is a Material Handler I position available to you effective immediately. I have been advised that you are aware of this position, however you have not yet returned to work. Please contact your LGM, Gary Young, regarding this position and your return to work.
Please be advised, failure to accept this position and return to work by June 23, 2009[, ] may be considered your voluntary resignation and your employment ...

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