June 03, 2007

Court Upholds Claim for Retaliatory Discharge

June 03, 2007

Siekierka v. United Steel Deck No. 3-06-0365

In the case of Siekierka v. United Steel Deck, the claimant contended that United Steel had wrongfully discharged him in retaliation for his assertion of his rights under the Workers’ Compensation Act.  United Steel contended that the discharge was based on a company policy and not because of a pending worker’s compensation claim.  The factual situation can be described chronologically as follows:

05/11/01 The claimant was injured and two days later was placed on temporary total disability.

05/21/01 Dr. Delheimer, a neurosurgeon, found him to be totally incapacitated.

06/04/01Dr. Delheimer scheduled the claimant to undergo surgery on June 11, 2001, with the doctor estimating that the claimant would be off work four to eight weeks.

07/11/01At the request of the employer, Dr. Shenker performed a neurological evaluation to obtain a second opinion.  Dr. Shenker noted that the severity of the pain had diminished since the injury and he was improving and recommended that the claimant take a “wait and see” approach for a month before considering whether to have surgery.  Dr. Delheimer agreed to wait.

07/31/01Kristine Paul, a Human Resources Manager with United Steel, wrote the claimant advising that since he had been off work since May 14, 2001, that his 12 weeks of family leave would end on August 6, 2001 and that United Steel was willing to extend his leave until the end of August.  Paul further informed the claimant that if he was unable to return to work by that time, he would be terminated and offered “COBRA” coverage.

08/14/01The claimant met with Paul and Ron Grant, the plant manager, and advised that he was to have surgery on August 15 and since it would take him four to eight weeks to recover, he could not possibly return to work by the end of August.  Paul admitted that the claimant did not request to be put on the Family Medical Leave Act.  After the meeting with the claimant, Paul and Grant considered that an additional two-month extension would be excessive in light of the company consistency to discharge employees who did not return to work after the completion of the FMLA period.  Paul admitted that before a decision is made to extend a leave, she looked at the different company policies, including the FMLA, Workers’ Compensation, Short Term Disability and the Americans With Disabilities Act.  She admitted that a person under leave through ADA would be granted more time to return to work because the law mandated it.

08/31/01Correspondence was forwarded to the claimant that he was terminated but that his workers’ compensation benefits would continue until he recovered.

11/15/01  The claimant was released for full duty.  He contacted United Steel about re-employment and was told it was not hiring at that time.  The TTD benefits continued until November 19.

As a part of the trial preparation, the claimant had testified that he did not know that the 12-week FMLA could apply to a work-related injury.  He further testified that he was under the impression until he was terminated that he was going to be allowed to return to work after he recovered from his injury.  Since Dr. Delheimer felt that he could return the claimant to return to work in eight weeks if he knew that the claimant’s job was at stake, the claimant noted that this eight-week period would place him within the termination date which occurred at the end of August.  Paul stated that the Federal FMLA policy mandated up to 12 weeks of leave and that she and Grant decided whether to extend the leave for a particular worker.  Grant further stated that he spoke to the Vice President of United Steel, who endorsed the decision not to extend the claimant’s leave.  Grant admitted that under the company’s operating policy that if any employee took longer than four months to recover from a work-related injury, he would be terminated.  No employee had ever received an extension beyond one month, which had been given to the claimant as well.

Following a hearing, the trial court granted United Steel’s Summary Judgment Motion.  The claimant appealed from the trial court decision, arguing that the facts were controverted and that there existed a genuine issue of material fact as to whether there was a connection between the claimant’s discharge and the exercise of his rights under the Act.  The appellate court agreed with the claimant and the matter was referred back to the trial court for further proceedings.

The appellate court reviewed the pertinent portions of the Statute and also the finding in the Kelsay case, the leading case interpreting the Statute.

Under section 4(h) of the Act, it is unlawful for “any employer, individually or through any insurance company or service of adjustment company, to discharge or threaten to discharge *** an employee because of the exercise of his or her rights or remedies granted to him or her by [the] Act.”  Because the workers’ compensation law replaced common-law rights available to employees and employers, the court in Kelsay v. Motorola, Inc., carved out an exception to the federal rule that an employer may fire an at-will employee for any reason or for no reason at all.  The Kelsay court reasoned that the sound public policy underlying the Act dictated the recognition of an employee’s cause of action for retaliatory discharge.  An underlying principle of the retaliatory discharge exception to the general rule of an at-will employment is the recognition that an employer may not present the employee with a choice between his job and his legal entitlement to compensation.  Kelsay prohibits an employer from utilizing an employee’s job as leverage to condition his exercise of rights under the Act.

The court further noted that United Steel had chosen to come forward with a valid non-pretextual basis for termination of the claimant’s employment and had fellow employees testify in support of this assertion.  However, the court also noted that United Steel had not advised the claimant that the FMLA statute would be utilized or that the claimant expected that he would be returned to work after he recuperated from his injury.

United Steel’s actions served to delay Siekierka’s surgery at the same time he was left uninformed that the delay had the potential to cost him his job.  When Siekierka was finally made aware of the possible consequence of his continued absence from work, he was faced with the option of pursuing his workers’ compensation right to have the surgery or attempting to return to work without it.  This is the kind of choice prohibited under Kelsay and if United Steel’s intent was to create this dilemma, its motive was retaliatory. 

Editor’s Note:

Over the years, some collective bargaining agreements have provided that the claimant would be automatically discharged if he was off work for a specific period of time, even though the employee remained away from work as a result of his injury.  However, the employer could argue that the employee, through the collective bargaining agreement had agreed to the circumstances of such a termination.  To my knowledge, none of these cases ever reached the courts.  In this case, the claimant did not suspect that the FMLA would be utilized to provide a basis for the termination when his ability to return to work within a 12-week period became impossible because of the employer’s handling of the claim.

Siekierka v. United Steel Deck, No. 3-06-0365, decided May 4, 2007

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, #1900 Chicago, IL 60606 (312) 855-1105