Synopsis: Illinois Appellate Court, WC Division Reversal of Commission/Circuit Court based on manifest weight of the evidence standard appears to be a “reach” but the unique risk created by the nature of claimant’s job compelled reversal. Analysis by John P. Campbell, Jr., J.D.
Editor’s Comment: This ruling may be a harbinger of things to come, if Bruce Rauner who is the leading candidate for IL Governor is elected in November and appoints more conservative hearing officers at the IWCC. We may then see numerous denied claims at the IWCC move to the Appellate Court, WC Division to be scrutinized by the justices there. If that scenario plays out, it make take a very long time to get challenging IL WC claims closed.
Generally, it is rare to see a reversal at the Appellate Court level based on the manifest weight of the evidence standard. The last two IL Supreme Court rulings on this issue, Sisbro and Twice Over Clean specifically discouraged such reversals. However, we are seeing the Appellate Court, WC Division doing this more and more—substituting their judgment on the facts for that of the IWCC and lower courts. However, both cases cited above were awards by the IWCC that were reversed in the Appellate Court to deny benefits. Since those rulings several years ago, a number of Appellate Court, WC Division unanimous rulings have reversed denials to insure benefits were awarded. We predict this track record will embolden the claimant’s bar to continue appeals to the Appellate level in hopes for reversal, despite the otherwise difficult standard of review. A concern about a reviewing court interposing their judgment on the facts over that of the Arbitrator is the reviewing court is analyzing a transcript where the Arbitrator had the advantage of hearing and seeing Claimant testify. It is similar to reading a text message rather than hearing/seeing someone talk. We feel that seeing a person testify in person and weighing their body language and mannerisms is a dramatically better vantage point to evaluate their truth-telling. Psychology Today confirms 55% of communication is body language and 30% is tone of voice and 7% is the spoken word.
Since this standard of review does not permit a substitution of factual interpretation, the appealing party may often try to argue for reversal based on a question of law, which permits a de novo review of the decision and therefore, a lower bar to hurdle while arguing for reversal. Despite an argument by claimant in this case for de novo review, the Appellate Court actually reversed under the manifest weight of the evidence standard. However, their supporting argument reads more like a reversal based on a de novo review of undisputed facts with a legal analysis of what constitutes an employment-related risk vs. “neutral risk” which would otherwise be common to the general public.
In the case of Don Young v. IWCC 2014 Il App (4th) 130392WC, Claimant sought benefits for a shoulder injury involving surgery after he felt a “pop” in his shoulder while reaching into a narrow, 3-foot deep box and retrieving an item of approximately 15 lbs.. At trial, the arbitrator found the act of reaching for an item, without more, did not impart an “increased risk” unique to the job an therefore, benefits were denied. However, it is important to also note the arbitrator specifically found claimant’s testimony was not credible, as his version of events was described as inconsistent throughout the medical and trial record. This is important, as the arbitrator’s conclusion in this regard was also attacked by the Appellate Court.
The Appellate Court rejected the Commission finding the mechanism of reaching down into a box was no greater than a risk common to the general public. Rather, the Appellate Court found the risk of injury in this case was distinctly associated with claimant’s employment and therefore, cannot be considered a “neutral risk”. A neutral risk has no employment related characteristics. However, in this case, the Court explained that “although the act of ‘reaching’ is one performed by the general public on a daily basis, the evidence in this case established the risk to which claimant was exposed was necessary to the performance of his job duties at the time of injury. His action in reaching and stretching his arm into a deep, narrow box to retrieve a part for inspection was distinctly associated with his employment.”
The Court also found the accident reports, medical records and testimony to be far more consistent and credible than the Commission’s ruling. Where the Commission found there to be embellishment and inconsistency regarding the level of stretching and overreaching performed, the Appellate Court noted the accident report described “over extended reaching limits” which was consistent with the medical records and testimony of claimant. In this regard, the Court here appears to havesubstituted their interpretation of facts for that of the Commission in further support of their reversal. That said, it does not appear the Court had to dive into a further analysis of the credibility issue here. Once the Court found the mechanism of injury to be a unique risk of employment (reaching into a narrow 3 foot box to retrieve an item), they had grounds to reverse this decision based on those undisputed facts, regardless of what relative minor inconsistencies there may have been regarding the injury as described. The vast majority of facts were undisputed regarding the size of the box, the weight of items and the mechanism of injury. Therefore, in our reasoned view, this could have been a de novo reversal based on undisputed facts.
This reversal, although surprising based on the difficult standard of review, is notable for rather specific circumstances of injury which imparted a risk unique to the employment. Had claimant in this case been reaching down to the floor to pick up a pencil, bag or other innocuous item, we doubt the Court would have ever dispensed a reversal, as such actions are not distinctly associated with the employment. However, where a worker must reach or stretch in a more unusual fashion ( into the bottom of a 3 foot box, which was only 16 inches wide, to pick up an item of about 15 lbs.,) we can understand how this is a mechanism unique to the job and therefore, created an increased risk of injury.
This article was researched and written by John P. Campbell, Jr. J.D. You can reach John any time at email@example.com.
Synopsis: Employment Practices Claim Gets “Tanked.” Important Seventh Circuit National Origin and Race Discrimination Ruling with analysis by Bradley J. Smith, J.D.
Editor’s comment: A former Indian-American T-Mobile employee alleged pay discrimination, wrongful termination, and retaliation pursuant to 42 U.S.C. § 1981. Tank v. T-Mobile USA, Inc., 2014 WL 3360476 (7th Cir. 2014).
The Seventh Circuit affirmed the Northern District of Illinois trial court ruling that granted summary judgment for Defendant T-Mobile. On appeal, the Seventh Circuit held: 1) the timing of the internal investigation was not suspicious; 2) the investigator’s questions were not discriminatory; 3) the investigator was not a decision maker; 4) T-Mobile’s proffered reason for termination was not pretext; and 5) Tank’s memorandum to investigator did not allege discrimination.
INVESTIGATIONS THAT ARE PROPERLY PERFORMED SHIELD EMPLOYERS
Initially, Plaintiff Tank alleged T-Mobile discriminated against him based on his race and national origin, but the Court held he failed to provide sufficient evidence to demonstrate discrimination to a jury. Particularly, Tank failed in his attempt to provide circumstantial evidence through his allegations of suspicious timing and pretext. Here, T-Mobile sent an HR employee to investigate what caused a tumultuous relationship between Tank and another employee. Two complaints from separate sources were submitted as a result of a subsequent meeting about Tank’s behavior with other employees. Consequently, the Vice-President of T-Mobile decided to terminate Tank because he defied his employer’s directive, authorized questionably expenditures of T-Mobile funds, and engaged in favoritism amongst his staff. Tank presented no evidence the HR employee orchestrated the two (2) independent complaints. Ultimately, the Court reasoned a reasonable jury could not find the timing of the investigation suspicious.
Next, Tank alleged T-Mobile’s investigation was conducted in an “extraordinary” manner. Nonetheless, Plaintiff failed to offer any corporate policy or other evidence that forbade Corporate Investigations and the HR Department from conducting joint investigations. Further, Tank failed to point to any policy, procedure or other evidence that demonstrated that it was improper for HR to personally select a Corporate Investigations investigator to handle the investigation.
Attempting to survive summary judgment, Tank further alleged discriminatory comments by an HR employee and a Vice President. Undoubtedly, a remark can raise an inference of discrimination if it is: 1) made by the individual terminating Tank; 2) at or near the time of the termination decision; and (3) in reference to the termination or other adverse action. Regardless, Tank alleged comments occurred more than three (3) years prior, which even if taken as true, were too remote in time to constitute evidence of discriminatory animus. Furthermore, the Court reasoned the HR employee was not an individual terminating Tank, and thus, even if the comments he made were taken in a light most favorable to Tank, T-Mobile would not be liable for discrimination. Tank attempted to use the cat’s paw theory in the Seventh Circuit, but waived it by not raising it in the District Court.
Next, Tank alleged T-Mobile retaliated against him for complaining about racist conduct towards other employees. Unquestionably, it is against the law to retaliate against an employee for opposing impermissible discrimination. In an attempt to demonstrate retaliation, Tank cited pretext in T-Mobile’s reasoning for his termination. However, the Court determined T-Mobile’s reasons for termination were factually supported by the record. Particularly, T-Mobile’s reasons for termination were consistent.
Lastly, Tank alleged comparators were treated more favorably given similar circumstances. Nonetheless, the Court reasoned Tank failed to point to similarly situated employees who were treated more favorably under similar circumstances. Tank also alleged he told the HR employee about racist behavior in a memorandum, however, the memorandum demonstrated no complaint relating to race or national origin.
Tank’s pay discrimination claim also failed, as he was unable to point to valid comparators that were similarly situated under the McDonnell Douglas burden-shifting approach. Accordingly, Tank failed to demonstrate a prima facie case of pay discrimination.
PROPERLY TRAINING EMPLOYEES/MANAGERS ON HANDLING EMPLOYMENT PRACTICES COMPLAINTS WILL SAVE YOU UNWANTED HEADACHES
Although the employer defeated this claim through an expensive summary judgment motion, properly training your employees on handling various types of complaints will undoubtedly limit your liability. Although Plaintiff failed to demonstrate a valid complaint of racist behavior, employers should properly train their staff on handling similar complaints. It will help if and when the EEOC comes knocking.
This article was researched and written by Bradley J. Smith, who is our employment law defense team leader. Fully ready to service your legal defense needs, Mr. Smith also manages the firm’s general liability department. Feel free to contact Bradley about this article firstname.lastname@example.org.
Synopsis: David Harrison, Rest in Peace.
Editor’s comment: The IL WC community mourns the passing of David C. “Dave” Harrison of Scheele, Cornelius & Harrison. Dave Harrison , age 65, was a resident of Willowbrook, IL, formerly of Matteson, IL. He died unexpectedly on Friday, July 4, 2014 at Adventist Hinsdale Hospital, Hinsdale, IL. He was born March 13, 1949 in Albany, NY. He was licensed to practice law on November 5, 1981. David C. Harrison concentrated his entire legal practice representing injured workers. He personally handled over 4,000 cases.
The defense team at Keefe, Campbell, Biery & Associates knew Dave Harrison to be a quiet and hard-working advocate for his clients. He is the last surviving founding member of the firm. He will be missed.