News

March 01, 2009

Plaintiff, William T. Herman, brought a tort action against Power Maintenance & Constructors for discharging him, or refusing to call him, in retaliation for his filing a workers’ compensation claim.  The trial court entered a summary judgment in defendant’s favor but the appellate court reversed.

Defendant laid plaintiff off because of medical restrictions resulting from a work-related injury.  Later, after plaintiff recovered from the injury and sought re-employment, defendant refused to recall him stating that the plaintiff’s prior work had been unsatisfactory.

The defendant argued that it had not discharged the plaintiff and that it should not be subject to the statutory claim of “wrongful discharge.”  The court, in finding for the plaintiff, stated that the defendant’s alleged reason for refusing to recall the plaintiff, that is the substandard performance, was a pretext for retaliating against him because of his workers’ compensation claim.  The court stated:

Plaintiff need not present direct evidence of a retaliatory motive; he can carry his burden of proof by showing that defendant’s explanation for refusing to recall him is not believable or that it raises a genuine issue of fact as to whether defendant was retaliating against him.

In a letter to the local union, defendant declined to recall plaintiff.  By way of explanation, the letter said that plaintiff had done poor work.  The performance evaluations tell a different story: plaintiff’s supervisors gave him mostly good or excellent ratings and no rating below average.

Editor’s Note:

The appellate court concluded that the trial court should hear the evidence to determine a factual dispute.  The plaintiff will have his day in court.

Herman v. Power Maintenance & ConstructorsNo. 04-08-0509, decided February 18, 2009

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, 19^th Floor Chicago, IL 60606 (312) 855-1105