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Corah v. The Bruss Co.

Court of Appeals of Illinois, First District, Third Division

March 29, 2017

JOSEPH CORAH, Plaintiff-Appellant,
THE BRUSS COMPANY, Defendant-Appellee.

         Appeal from the Circuit Court of Cook County. No. 2012 L 003916 The Honorable James E. Snyder, Judge, presiding.

          JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.


          LAVIN JUSTICE.

         ¶ 1 This appeal arises from the trial court's order granting summary judgment on plaintiff Joseph Corah's whistleblower claim to defendant The Bruss Company, an affiliate of Tyson Foods (Tyson). On appeal, plaintiff contends that the trial court erroneously granted defendant's motion for summary judgment because defendant instructed plaintiff to participate in an activity that directly violated an injured employee's rights to benefits under the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2012)). In addition, plaintiff contends that the trial court erred in barring plaintiff from claiming emotional distress and punitive damages pursuant to the Whistleblower Act (740 ILCS 174/1 et seq. (West 2012)).

         ¶ 2 BACKGROUND

         ¶ 3 We recite only those facts necessary to understand the issues raised on appeal. This case arises from plaintiff's termination by defendant for allegedly refusing to participate in a record falsification stemming from employee Yvette Albea's accident. In April 2012, plaintiff commenced this action alleging that his termination from defendant's employ violated section 20 of the Whistleblower Act. 740 ILCS 174/20 (West 2012). Specifically, plaintiff argued that his termination was a direct result of his refusal to file a false accident investigation report (AIR), which would have been used as a basis for Albea's claim for benefits pursuant to the Workers' Compensation Act.

         ¶ 4 Depositions and affidavits submitted during discovery revealed the following. Plaintiff testified that defendant employed him in February 2010 as the bone-in-steak production supervisor, reporting to plant superintendant Darwin Hanson. Plaintiff's safety-related responsibilities consisted of monthly staff trainings, safety committee discussions about potential hazards, and weekly plant walk-throughs. If a workplace injury occurred, the supervisor of the department would investigate the incident and complete an AIR. The AIR contained a section referred to as the "Five Whys, " which consisted of a series of why questions that a supervisor would ask in succession to get to the root cause of an injury or illness. Defendant believed a copy of the AIR was kept in-house and additional reports would be submitted to corporate, the insurance company, and the Occupational Safety and Health Administration (OSHA).

         ¶ 5 On September 6, 2010, Albea, a food handler under plaintiff's supervision, qualified as a higher-paid butcher on the band saw. Albea initially performed well, but eventually her speed and efficiency diminished as she began to experience lightheadedness and diaphoresis, causing her glasses to fog up. Plaintiff repeatedly voiced his concerns to Hanson about Albea's situation, and on September 29, 2010, plaintiff disqualified Albea. But after she allegedly threatened to file a union grievance, against plaintiff's strong objection, Hanson and plant superintendent Herman Ochoa allowed Albea to return to the band saw. Shortly thereafter, she sustained a laceration of the top of her right, middle finger. Following an investigation of the incident, plaintiff concluded that the root cause of Albea's injury was Ochoa and Hanson's carelessness in putting Albea back on the band saw. When plaintiff met with Hanson, Ochoa, and Bob Morisette, defendant's human resource manager, they all concluded that plaintiff's explanation was not the root cause of Albea's injury. Thus, plaintiff was instructed to redo the AIR to put "the fault on [Albea] versus the fault on poor leadership and choices of upper management." Plaintiff refused and was terminated for insubordination.

         ¶ 6 Following his termination, plaintiff spoke to Albea several times over the telephone. She allegedly told plaintiff that defendant instructed Albea to report the accident occurred outside the workplace. Plaintiff advised Albea that defendant violated her rights by failing to give her a choice in her medical care immediately following the accident when Ieon Bhairoo, another production supervisor, took Albea to the immediate care clinic instead of the hospital emergency room. Plaintiff, however, did not know if defendant refused to pay Albea's medical bills, challenged whether she was injured at work, or deterred her from seeking workers' compensation benefits.

         ¶ 7 Hanson testified that after hearing plaintiff's concerns, he decided to pull Albea off the band saw for a couple of days and suggested she consult with a doctor. Albea was upset, but Hanson explained it was a temporary decision. When Albea communicated that she was feeling better, Hanson consulted with Morisette and they agreed to put her back on the band saw. After Albea's injury, Hanson instructed plaintiff to complete the "Five Whys" portion of the AIR to determine the "root cause" of Albea's accident. Hanson, however, "did not ask [plaintiff] to change or delete anything or leave anything out."

         ¶ 8 Ochoa further testified that the purpose of the "Five Whys" portion of the AIR was to prevent the same accident from happening again. For instance, Ochoa wanted to know how Albea was standing and what position her hands were in. Ochoa terminated plaintiff because he "outright refused" to put this type of information in the AIR, even though Ochoa was going to allow plaintiff's typewritten concerns regarding management to be included. Morisette reiterated Ochoa's concerns and testified that the incident was not video recorded because Albea was standing in a blind spot. Thereafter, Bhairoo investigated Albea's injury and completed the AIR to defendant's specifications. He noted that Albea was cutting steak from a short loin when a piece jerked and the blade cut her finger.

         ¶ 9 Defendant's safety manager Lorrie Baker attested that she rejected plaintiff's AIR because plaintiff did not complete the "Five Whys" portion by identifying the root cause of Albea's injury. Specifically, Baker "wanted to know how and why Ms. Albea's finger made contact with the saw blade." AIRs were internal documents that were not submitted to OSHA or any other governmental agency. Defendant separately maintained an OSHA Form 300 to record all work place injuries and a separate workers' compensation report. Baker personally prepared the workers' compensation report for Albea's injury.

         ¶ 10 Jamie Bolinger, Tyson's workers' compensation administrator, attested that in processing an employee's injury he had access to the AIR report, but AIRs were not submitted to a state workers' compensation commission. Tyson and its affiliates were self-insured in the workers' compensation area and paid out claims directly from their own funds. Defendant stipulated that Albea was injured in the workplace and Bolinger approved Albea's application for workers' compensation benefits without objection. Albea never litigated any claim through the Illinois Workers' Compensation Commission because there was no dispute that she was entitled to benefits. Albea also testified that her injury was work-related and she did not recall defendant trying to interfere with workers' compensation benefits.

         ¶ 11 In April 2014, defendant filed a motion for summary judgment arguing plaintiff failed to demonstrate that he refused to participate in any activity that would have resulted in a violation of any state or federal law, rule, or regulation, required to prevail under the Whistleblower Act. Further, plaintiff failed to establish a causal link between his alleged protected activity and his termination. After oral arguments, the trial court allowed plaintiff to file a supplemental report with citation and evidence to any federal or state law, rule, or regulation that would have been violated with his alleged refusal to complete the "Five Whys" portion of the AIR. Thereafter, plaintiff cited to several statutes under the Workers' Compensation Act (820 ILCS 305/4(h), 6(b), 25.5 (West 2012)), as well as violations under OSHA for filing a false statement regarding a work-related injury. On September 10, 2014, the trial court granted defendant's motion for summary judgment in regards to plaintiff's claims for emotional distress and punitive damages but granted leave for plaintiff to file an amended complaint to comport with proofs. Defendant ...

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