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Matros v. Commonwealth Edison Co.

Court of Appeals of Illinois, First District

July 31, 2019

RUSSELL MATROS, Plaintiff-Appellant,

          Appeal from the Circuit Court of Cook County, Illinois, County Department, Law Division. No. 13 L 12976 The Honorable John Griffin, Judge Presiding.

          Attorneys for Appellant: Steven R. Saks, of Rittenberg, Buffen, Gulbrandsen, Robinson & for Saks, Ltd., of Chicago, for appellant.

          Attorneys for Appellee: Garrett Boehm, of Johnson & Bell, Ltd., and Kent Sezer, both of for Chicago, for appellees.

          PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Ellis concurred in the judgment and opinion.



         ¶ 1 This cause of action stems from a retaliatory discharge claim filed by the plaintiff, Russell Matros, against his former employer, the defendant Commonwealth Edison Company and its parent company, the defendant Exelon Corporation (hereinafter collectively referred to as ComEd), alleging that he was fired in retaliation for exercising his rights under the Illinois Workers' Compensation Act (Workers' Compensation Act or Act) (820 ILCS 305/1 et seq. (West 2012)). After a bench trial, the trial court found in favor of ComEd. The plaintiff appeals from that judgment, contending that (1) the trial court misapplied the law regarding causation and (2) the trial court's findings were against the manifest weight of the evidence. For the reasons that follow, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 From the outset, we note that the record before us is voluminous and that the seven-day bench trial included the testimony of 12 witnesses and the introduction of over 130 exhibits. We therefore set forth only those facts that are relevant to the resolution of the issues addressed in this appeal.

         ¶ 4 It is undisputed that the plaintiff, who is an overhead electrician specialist (OES), worked for ComEd for over 20 years, between 1979 and September 20, 2004. It is further undisputed that, during his employment with ComEd, the plaintiff filed two separate workers' compensation claims (820 ILCS 305/1-30 (West 2002)) seeking benefits from ComEd. The first such application was filed on July 8, 2003, for injuries suffered to his right shoulder on April 23, 2002 (No. 03-WC-33033). The second application was filed on October 23, 2003, for injuries suffered to his left shoulder and psyche on October 3, 2003 (No. 03-WC-51570).

         ¶ 5 Following a consolidated hearing on the two claims, on February 16, 2007, the arbitrator found that the injuries sustained by the plaintiff on both April 23, 2002, and October 3, 2003, arose out of and in the course of his employment with ComEd, and that both accidents were "a contributing cause" of the plaintiffs "present psychological condition of ill being." Accordingly, in case No. 03-WC-33033 the arbitrator awarded the plaintiff, inter alia, temporary total disability (TTD) benefits from August 20, 2002, through February 10, 2003, and additional TTD benefits from July 2, 2003, through August 5, 2003. In case No. 03-WC-51570, the arbitrator awarded the plaintiff TTD benefits, medical expenses, and penalties for ComEd's failure to pay those benefits. ComEd filed a petition for review of the arbitrator's decision before the Illinois Workers' Compensation Commission (Commission).

         ¶ 6 While that petition for review was pending, on March 19, 2007, the plaintiff filed his retaliatory discharge claim against ComEd, alleging that he was terminated because he exercised his right to seek workers' compensation benefits. The workers' compensation claims and the retaliatory discharge action were litigated in parallel.

         ¶ 7 On October 16, 2009, the Commission modified the arbitrator's decision in both cases. With respect to case No. 03-WC-33033, the Commission found that the plaintiff was suspended from his employment on July 2, 2003, through August 5, 2003, and therefore was not entitled to TTD benefits for that time period. Further, the Commission found that the plaintiffs anxiety and depression were unrelated to his April 23, 2002, right shoulder injury. With respect to case No. 03-WC-51570, the Commission found that there was "no causal connection" between the plaintiffs October 3, 2003, work injury and his current psychological condition of ill-being. Accordingly, the Commission vacated the award of TTD benefits and medical expenses since they were both incurred, inter alia, as a result of that "psychological condition."

         ¶ 8 The plaintiff appealed the decision of the Commission. On February 19, 2013, we affirmed that decision. See Matros v. Illinois Workers' Compensation Comm 'n, 2013 IL App (1st) 113646WC-U. In doing so, we found that the record supported the Commission's finding that the plaintiffs psychological condition was not the direct and natural result of either his right or left shoulder injury. Id. ¶¶ 51-53.

         ¶ 9 While the plaintiffs workers' compensation cases were being appealed, his retaliatory discharge action proceeded with extensive discovery. Following the denial of cross-motions for summary judgment in the retaliatory discharge action, on March 26, 2018, the matter finally proceeded to a bench trial at which the following relevant evidence was adduced.

         ¶ 10 A. The Plaintiffs Case-in-Chief

         ¶ 111. The Plaintiff

         ¶ 12 The plaintiff testified that he was 19 years old when he began working in the mail room at ComEd. He stated that since then he had been progressively promoted, first to lineman in 1984, then to OES, and finally to lamper in 1998. In 2001, he was a lamper at ComEd's Crestwood office, which encompasses the geographic area between 87th Street and Interstate 80, and Will Cook Road and the city limits, and his job responsibility was to repair and maintain streetlights. The plaintiff stated that he "loved [his] job" and believed he was "good at it." With about 2000 hours of overtime in 2001, he made close to $130, 000 a year.

         ¶ 13 The plaintiff testified that prior to April 23, 2002, he had been injured at work on at least two occasions and was therefore familiar with the workers' compensation process. On April 23, 2002, the plaintiff was changing a broken streetlight when a mast bar came off the pole and in an attempt to prevent it from falling onto the street below, the plaintiff held it with his hand and it dislocated his shoulder. The plaintiff reported this incident to his supervisor and filled out an incident report. The plaintiff was initially treated by his own primary care physician, Dr. Ibrahim, who diagnosed a right shoulder sprain, prescribed medication, and released the plaintiff to full-duty work. The plaintiffs shoulder did not improve and on July 13, 2002, he sought treatment from an orthopedic surgeon, Dr. Smith. The plaintiff underwent right shoulder surgery on August 20, 2002, after which he did not return to work. He began physical therapy on September 9, 2002. While doing physical therapy, the plaintiff aggravated his shoulder, and on January 29, 2003, Dr. Smith recommended that he have an additional MRI. The plaintiff acknowledged that ComEd accepted the injury and the treatment immediately and he was paid disability benefits during this time.

         ¶ 14 The plaintiff explained, however, that on February 10, 2003, he received a letter from ComEd's senior human resources (HR) consultant, Debra Staples, which shocked him. The letter stated that he had "failed to comply with the Occupational Health & Services Department [OHS] by not providing documentation to support [his] absence" and that it was "imperative" that he report to work "immediately." According to the letter, failure to comply with the request would "jeopardize [his] employment status with ComEd." The plaintiff averred that at this time and unbeknownst to him, ComEd had also stopped paying his disability benefits a week earlier.

         ¶ 15 Ignoring his physician's recommendations, the plaintiff returned to work the following day. From February 11, 2003, through March 19, 2003, the plaintiff was on restricted duty until his orthopedic surgeon, Dr. Smith, released him to full duty.

         ¶ 16 The plaintiff averred that as soon as he returned to work on February 11, 2003, he was treated differently. According to the plaintiff, his immediate supervisor, Wayne Brazeau, became less social with him and began "harassing" him with questions about when he would return to full duty. The plaintiff stated that before his injury, he had a great relationship with Brazeau because Brazeau had come from the military and did not know much about ComEd procedures and installations, so the plaintiff had "helped him along."

         ¶ 17 The plaintiff averred that even after he returned to full duty on March 20, 2003, his shoulder continued to bother him, and he often took pain medication (Ibuprofen) to alleviate the pain. Nonetheless, he continued to perform his duties through May 2003. The plaintiff stated that he turned in his tickets to Brazeau at the end of each day, including how many streetlights he had repaired, and that in those three months he was never disciplined for not completing a sufficient number of repairs.

         ¶ 18 The plaintiff testified that on Thursday, May 1, 2003, he telephoned Brazeau early in the morning to tell him he was going to take two vacation days to attend the Kentucky Derby, which was the following day. He explained that he had attended the derby for 37 years in a row and that his friend was coming into town that afternoon so he wanted to be able to pick him up from the airport. The plaintiff also explained that because he was a lamper he could take vacation days whenever he wanted to and did not need to ask for permission first. According to the plaintiff, however, Brazeau was not available to pick up the telephone when he called and instead Marty Quinn, who was another supervisor, answered the call. Quinn told the plaintiff to telephone back in five minutes. When the plaintiff called again, Brazeau was still busy, so the plaintiff asked Quinn to pass the message to Brazeau. The plaintiff heard Brazeau talking to Quinn and responding that he wanted the plaintiff to come into work that day, but that he could have the following day off. The plaintiff came into work on Thursday, but took a vacation day on Friday.

         ¶ 19 The plaintiff averred that about 20 days later he was called into a meeting where he was told that he was going to lose a day's pay for not properly requesting vacation, namely not going directly through Brazeau. The plaintiff acknowledged that he had at least four meetings with Brazeau's supervisor, Anthony Cameron, regarding this incident because he believed he was not being treated fairly. The plaintiff averred that prior to that date, there had never been issues with taking vacation, and the benefit of a lamper position was the ability to take a vacation day without prior notice or permission. The plaintiff testified that, during these meetings, Cameron informed him that ComEd had changed its policy regarding vacation while the plaintiff had been on disability. The plaintiff became suspicious and ordered his personnel file from HR, fearing that the company was attempting to add things to his record to smear his reputation. On cross-examination, the plaintiff admitted that both under the collective bargaining agreement and ComEd's policy, a lamper, like himself, needed his supervisor's permission before taking a day off but maintained that the company had previously never followed this rule to the letter.

         ¶ 20 The plaintiff further testified that in May 2003, he was approached by OES supervisor, Dan Gerry, who informed him that, in addition to his lamping duties, he would have to help troubleshoot other electrical problems at Crestwood. The plaintiff stated that for any type of troubleshooting, it was imperative that he had maps of the area. He averred that each electrician had his own maps (two maps, which were about two by three feet long and contained 300 pages each) and would need to highlight them for ease of reading. The plaintiff claimed that although he had seen his maps in the storeroom when he returned to work after his disability, when he searched for them in May 2003, he could not find them. The plaintiff informed Gerry that his maps were missing, and Gerry told him that Cameron had an extra set in his office. The plaintiff found this curious because Gerry did not seem upset, and because as a construction supervisor, Cameron would not need maps. Cameron gave the plaintiff the maps, which the plaintiff claimed were useless because they were not highlighted. On cross-examination, the plaintiff, however, admitted that in his prior deposition testimony, he had never stated or suggested that Cameron had purposely sabotaged his maps. In fact, he admitted that at that deposition he had testified that of all of his supervisors, he considered Cameron to be "the most honest."

         ¶ 21 On July 1, 2003, the plaintiff was met out in the field by Cameron. Cameron asked the plaintiff to produce his work sheet and asked him what he had been doing. The plaintiff gave his clipboard to Cameron and told him he had been on the telephone with his girlfriend for 30 minutes. Cameron instructed the plaintiff to return to headquarters for a fact-finding meeting.

         ¶ 22 According to the plaintiff, at that meeting, Cameron told the plaintiff that ComEd had been receiving customer reports that his truck was "just sitting," and that he was being suspended pending an investigation. The plaintiff was shocked because he did not think he had done anything wrong. He averred that after he was sent home in July, ComEd set up five meetings with him that they would then cancel last minute.

         ¶ 23 In July 2013, the plaintiff sought medical attention from Dr. Ibrahim because he was becoming anxious about "what was going on with his job." He had problems sleeping and eating and complained about tightness in his chest, lack of interest, and depression. Dr. Ibrahim diagnosed the plaintiff with anxiety and depression "secondary to the change of the patients' life, which is potential for him losing his job." He advised the plaintiff to see a psychiatrist and prescribed him Paxil.

         ¶ 24 The plaintiff returned to work on August 5, 2003, at which point he was asked to attend a meeting with management. At this meeting, the plaintiff was shown videotaped surveillance taken of his truck sitting idle in June and July 2003 and was accused of sleeping on the job. When watching these videos, the plaintiff immediately told management that he was not sleeping but was highlighting his maps inside the truck. The plaintiff said he could prove it to management by brining the maps from his truck but was refused. On cross-examination, the plaintiff admitted that when he was originally accused of sleeping in his truck on July 1, 2003, he never told anyone present at the fact-finding meeting that he had been working on his maps. Rather, he made this assertion for the first time on August 5, 2003, after he was presented with video surveillance showing his truck sitting idly in the parking lot.

         ¶ 25 The plaintiff next testified that on September 3, 2003, he implored Cameron and Gerry to watch him work because he wanted to show them what he could do. On that date, the plaintiff finished 11 lights and worked one hour of overtime. The very next day, September 4, 2003, the plaintiff was called into an "expectation meeting," where he was presented with a document listing the following relevant expectations: (1) that he leave headquarters by 8 a.m. and return by 3:10 p.m. and (2) that he complete between 15 and 20 lamp repairs per day. The plaintiff was told that if he did not meet these expectations he would be terminated.

         ¶ 26 The plaintiff believed these expectations were "completely unreasonable." He explained that he could not depart before 8.a.m. because he was required to complete a thorough truck inspection before leaving the yard. Returning by 3:10 p.m. was also impossible because he had to throw all the garbage from materials used that day and restock his truck. In addition, the plaintiff stated that in his whole time as a lamper he was able to complete 15 lamps a day "maybe on two instances," which involved large parking lots or corporations with numerous lamps requiring repair at the same location. The plaintiff acknowledged that "back in the day" it may have been possible to complete 15 repairs but stated that this was before management instituted the additional paperwork and the truck inspection, which probably added another two hours to the day.

         ¶ 27 The plaintiff explained that he was familiar with the work of other lampers at ComEd and that nobody came close to completing between 15 and 20 lamps per day. In fact, according to the plaintiff, in 2002, ComEd had hired an outside company to perform time studies for employees at Crestwood. According to those studies, the plaintiff could complete a streetlamp repair in 30 minutes, and he was the number one performer at Crestwood. The plaintiff also testified that prior to his injury in 2003 he was never punished for lack of production.

         ¶ 28 The plaintiff testified that he attempted to meet all of the expectations set forth at the September 4, 2003, meeting because he knew he was being watched and did not want to lose his job.

         ¶ 29 The plaintiff averred that on September 10, 2003, and on at least two other occasions, he was nonetheless given "a hard time" for still being in the yard at 8:20 a.m. The plaintiff stated that "everyone else was still in the yard" and that he did not understand why he was being singled out. Each time the plaintiff asked management to watch him work and give him suggestions on how to be more efficient so he could leave the yard earlier, but each time, he was refused.

         ¶ 30 The plaintiff also acknowledged that on September 22, 2003, in a 10-hour day, he repaired a total of 10 lights but reiterated again that completing 15 lamps was impossible.

         ¶ 31 The plaintiff testified that on Friday, October 3, 2003, he was stocking shelves at work when he injured his left shoulder. The plaintiff reported the accident to Quinn because Brazeau was in the field. Quinn filled out the accident report and told him to go to the company clinic. Quinn drove the plaintiff to the company clinic and was present during the physician's examination. When the plaintiff questioned this, he was told that ComEd was paying for the treatment and therefore could be present. The plaintiff averred that the physician neither manipulated his arm, nor took an X-ray, but merely asked him how his arm was feeling. The physician then gave the plaintiff ibuprofen and instructed him to return to work on full duty.

         ¶ 32 The plaintiff made an appointment with his own physician, Dr. Smith, for Monday, October 6, 2003. The plaintiff went into work that day and informed Cameron that he had an appointment for a second opinion about his left shoulder for that afternoon at 1 p.m. Cameron first told the plaintiff that if the OHS nurse, Rita Egizio, approved, he would permit the plaintiff to take the afternoon off. The plaintiff telephoned Egizio, but she informed him that she was not authorized to let him go see his own doctor during work hours and that only Cameron could make such a decision. The plaintiff rescheduled his appointment with Dr. Smith for later in the afternoon. Dr. Smith noted pain and tightness on internal rotation of the plaintiffs left shoulder and ordered an MRI.

         ¶ 33 The plaintiff continued to work and, on October 7, 2003, was called into another expectation meeting, where he was told to "get it together" and informed that this would be the last time he would be reminded of the company's expectations. At the meeting, the plaintiff told Brazeau and Cameron that his left shoulder continued to bother him, but they instructed him that he had been cleared to return to full duty by the clinic physician and to go back to work.

         ¶ 34 Two days later, on October 9, 2003, the plaintiff again complained to Gerry and Brazeau that his shoulder was bothering him. The plaintiff was instructed to return to the company clinic. Once there, the plaintiff asked the physician to sign a medical authorization form from his workers' compensation attorney, prohibiting the physician from disclosing any information shared by the plaintiff with ComEd. The physician informed the plaintiff that he could not sign the form and then refused to examine the plaintiff.

         ¶ 35 The plaintiff returned to work and went to talk to Brazeau. The plaintiff testified that the conversation centered on why ComEd was forcing him to work when he had a shoulder injury. The plaintiff acknowledged that he told Brazeau that if his shoulder "[got] all messed up because [he was] allowing him to go out there and work, some s*** going to hit the fan." The plaintiff acknowledged that after he made this statement, Brazeau ordered him to come to a coaching session for insubordination after his shift.

         ¶ 36 The plaintiff testified that immediately thereafter he made an appointment to see Dr. Ibrahim later that day. He denied leaving work earlier to make the appointment but acknowledged that he never attended the coaching session with Brazeau. He explained that later that afternoon Dr. Ibrahim referred him to a psychiatrist, prescribed Paxil, and put him on short-term disability leave, for psychological reasons, including depression, anxiety, and difficulty with focus and concentration. The plaintiff thereafter applied for disability leave and benefits, starting October 10, 2003, through July 2004. He remained off work until January 2004.

         ¶ 37 Immediately upon starting disability, on October 11, 2003, the plaintiff wrote a letter to Staples of ComEd's HR describing to her the treatment he had been receiving at work, which he characterized as "harassment" stemming from his injury and his workers' compensation claim and asking her for help. Staples did not respond to this letter or offer the plaintiff any kind of assistance.

         ¶ 38 While on disability, on October 23, 2003, the plaintiff began seeing a psychiatrist, Dr. Moolayil. Dr. Moolayil kept notes of their appointments and sent them to ComEd. In November 2003, the plaintiff also began seeing a licensed clinical social worker, Sara Contorer. The plaintiff told both Dr. Moolayil and Contorer that he was depressed and felt "completely lost" because his job was a "huge part" of him, and it was being threatened, and "this company that [he] used to love so much, was now treating him so relentlessly." On cross-examination, the plaintiff admitted that although he was living with his girlfriend at the time, he told Dr. Moolayil that he was single and living alone in Tinley Park.

         ¶ 39 The plaintiff admitted that during his time off work, between December 11, 2003, and December 20, 2003, he traveled to Hawaii. The plaintiff claimed, however, that both his psychiatrist and the social worker encouraged him to travel to alleviate his psychological condition. He also stated that he had no idea he needed to tell ComEd he was traveling out of town.

         ¶ 40 On cross-examination, however, the plaintiff acknowledged that during this time period the benefits he was receiving were not workers' compensation benefits but rather disability payments under the union-offered Mutual Benefits Association/Exelon Corporation Disability (MBA) benefits plan (the MBA plan). The plaintiff agreed that one of the rules of the MBA was that an employee receiving such benefits was not allowed to leave town without the company's permission and that therefore any trips taken without such permission were made in violation of the MBA plan. Nonetheless, he averred that he was not aware of this rule at the time he took his trip.

         ¶ 41 The plaintiff testified that while he was in Hawaii, ComEd sent his workers' compensation attorney a notice of an independent medical examination (IME) scheduled for December 18, 2003. The plaintiff was out of town, so he could not attend. ComEd then sent a rescheduled notice of an IME for January 20, 2004. The plaintiff did not appear for this appointment either. He testified that he did not hear about the appointment from his attorney until the day of and was therefore without sufficient notice to attend.

         ¶ 42 On cross-examination, he admitted that at this time he was living with his girlfriend and was therefore not receiving any mail that ComEd was sending to his home address in Tinley Park between October 2003 and January 2004. The plaintiff could not explain why he had not forwarded his mail to his girlfriend's address.

         ¶ 43 On January 26, 2004, the plaintiff received a letter from Staples stating that it was imperative that he report to work immediately and that failure to comply would result in his termination. He received a second letter from Staples, essentially stating the same thing, on January 28, 2004.

         ¶ 44 The plaintiff returned to work on January 30, 2004, because he did not want to lose his job. He acknowledged that on that same date, he immediately requested all of his vacation days (which had accumulated to over 25 days). He therefore did not return to work the following day. During his vacation in February, the plaintiff traveled on a 10-day trip to Spain with a friend. He acknowledged that they traveled by airplane, ate out, stayed at hotels, and traveled around Spain's Costa del Sol.

         ¶ 45 On February 5, 2004, through his worker's compensation attorney, the plaintiff filed a petition for an immediate hearing on his psychological condition being work related, which ComEd disputed.

         ¶ 46 On March 4, 2004, the plaintiff finally attended his third scheduled IME appointment with Dr. Reff, who had been hired by ComEd to evaluate him. The plaintiff told Dr. Reff how he was feeling (particularly that he was being targeted at work) and described the medication and treatment he had been receiving for his anxiety and depression. On cross-examination, the plaintiff acknowledged that he did not tell Dr. Reff that he had been on a 10-day vacation to Spain. Instead, he told Dr. Reff that he did not bathe regularly and that he avoided going out and driving because he was convinced that he was being followed and watched. The plaintiff also admitted telling Dr. Reff that he did not regularly read, watch television, or perform household tasks, and that he had very little motivation to do anything except for lie around the house.

         ¶ 47 Dr. Reffs IME report agreed with the plaintiffs treating physicians and diagnosis. According to that report, the plaintiff suffered from major depression and the condition was causally connected to his shoulder injuries and his treatment by ComEd.

         ¶ 48 After the IME report, ComEd began paying the plaintiff temporary disability benefits, and he was told that his vacation days would be returned to him. The plaintiff testified that he felt vindicated. Between March and June 2004, the plaintiff continued the treatment recommended by his psychiatrist. He admitted that in that time he continued exercising at the gym both for his mental health and to treat his shoulder injury. He also admitted going to the Kentucky Derby in May 2004. In July, he had elbow surgery, which was unrelated to his prior work-related injuries. He admitted that he "felt better."

         ¶ 49 The plaintiff averred that, in July 2004, he learned he would undergo a second IME with Dr. Reff The plaintiff acknowledged that before that meeting he took Klonopin, which was one of the medications he had been prescribed for "high anxiety" and which he was aware would "really kind of knock you out." On July 22, 2004, the plaintiff met with Dr. Reff and told him that he had been playing baseball with his girlfriend, going to the gym, and trying to feel better so that he could return to work as soon as possible. The plaintiff acknowledged that he later learned that before this second IME, Dr. Reff had reviewed his personnel records from ComEd as well as numerous surveillance videos taken of him during his disability leave. The trial court viewed these surveillance videotapes during cross-examination. The plaintiff admitted that in an April 14, 2004, video he appears on an elliptical machine reading a newspaper. In a July 9, 2004, video he appears jogging, playing ...

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