Synopsis: Federal District Court Rules FedEx Discharged A Worker in Retaliation for Not Providing Notice Prior to Getting Work-Related Medical Care.

Editor’s comment: We feel sure this ruling will be appealed to the Seventh Circuit Court of Appeals—in our view, it won’t stop at the District Court level and we will have to await the appellate outcome to be sure where it will all go. However, we are certain this ruling “endangers” or calls into question the legal viability of

Ø Same-shift accident reporting rules or

Ø Any requirement a worker first advise the employer before obtaining work-related medical attention.

As long-time court watchers and with respect to this august and veteran federal judge, we wholly disagree with the approach used. FedEx did not refuse to have this worker get medical care. We feel it is safe to assume the medical care obtained under the IL WC Act was paid for by the employer. Having read the decision, we don’t feel the employee was fired for needing and getting work-related medical attention. The termination was for not reporting the medical care until after it happened. There is no provision in the IL WC Act which makes it “illegal” for an employer to ask employees to timely report the need for medical care. In fact, there are hundreds of safety and personnel reasons supporting the need for such reporting.

As a rapid example, take the recent controversy about the employee who appears to have been suffering from severe psychiatric concerns. The damage done by him at the FAA radar facility in Aurora was so extensive the center might not be operational for several days. Thousands of flights were cancelled and the cost will be well into the millions. The suspect, who set several fires with rags and gasoline in the basement, managed to shut down all radar and communications systems in the facility. Would it be a bad thing for his employer to require him to report he was getting work-related psychiatric or other medical care?

In Stevenson v. FedEx, No. 13 C 138, published 9/24/14, there was no dispute about the basic facts. Defendant FedEx employed Plaintiff Stevenson as a package handler. As of January 2011, Stevenson was subject to a FedEx company policy that required immediate reporting of workplace injuries whether they required only minor first aid or medical treatment. In addition, FedEx policy required employees wishing to seek medical treatment for a workplace injury first attempt to provide advance notice to management via a free 24-hour phone line or other means. Under this company policy, failure to notify management before seeking work-related medical care could subject the employee to immediate termination.

On January 6, 2011, Stevenson reported to supervisors that he was suffering from a sore back. FedEx generated a First Aid/Injury Report and placed Stevenson on light duty to accommodate his condition. He did not request or seek medical treatment at that time. After working light duty for five days, Plaintiff Stevenson sought medical treatment for his back without first advising FedEx. The physician assistant or PA who examined him provided a “Certificate to Return to Work,” which cleared Stevenson to return to work. Stevenson began his next shift, as previously scheduled, at 10:30 p.m. on January 13 and worked until about 7:00 a.m. and worked light duty as FedEx had not yet returned him to regular duty. At the end of his shift, Stevenson presented the note from the PA, thereby notifying FedEx he had already sought and received medical care for the January 6 incident. Citing the company policy that required advance notice before seeking medical treatment for a prior workplace injury, FedEx terminated Stevenson’s employment.

Stevenson then brought a retaliatory discharge action. FedEx removed the action to the federal District Court. The federal court noted under Illinois law, it is unlawful for an employer to terminate an employee in retaliation for exercising a right guaranteed by the Illinois Workers’ Compensation Act. For claims alleging retaliatory discharge for the exercise of IWCA rights, the employee must prove

Ø Status as an employee of Defendant;

Ø Exercise of a right granted by the IL WC Act, and

Ø Causal relationship between discharge and the exercise of that right.

The federal court indicated the parties agreed Stevenson was a FedEx employee and that a causal relationship exists between Stevenson’s actions and Stevenson’s termination. They simply disagree about whether all of his actions were protected. FedEx concedes the IL WC Act protects Stevenson’s actions in seeking medical care from his own provider and in later filing a Workers’ Compensation claim, but contends that the sole cause of his termination was not the fact he sought medical treatment but rather his failure to notify the company before he did so. The federal judge reviewed the motions of both parties and noted Plaintiff Stevenson did not dispute the cause of his termination: “Plaintiff admits he was terminated on January 17, 2011, for failing to notify his supervisors or management prior to seeking medical attention for a work injury.”

The federal judge also noted her feelings FedEx repeatedly mischaracterized Plaintiff’s argument as asserting his termination was based solely on the fact he sought medical treatment, ignoring Plaintiff’s repeated statements “Defendant unlawfully . . . interfered with Plaintiff’s rights by requiring him to notify his supervisor prior to seeking medical attention for a work injury.” The Court felt the remaining question, then, was whether the IL WC Act grants employees the right to seek medical care for a prior workplace injury without first notifying a supervisor.

Stevenson’s argument rests on the fact the IL WC Act prohibits employers from interfering with an employee’s attempt to exercise rights provided in the statute. The Illinois Workers’ Compensation Act provides, in relevant

part:

(h) It shall be unlawful for any employer . . . to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act . . . . It shall be unlawful for any employer . . . to discharge . . . an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.

Because one of the rights guaranteed by the IL WC Act is the right to seek medical treatment, Plaintiff Stevenson argued the IL WC Act therefore protects the right of employees to secure one’s own medical provider without interference “in any manner whatsoever.” In its briefs, FedEx did not dispute the legal premise of Stevenson’s argument the IL WC Act provides the right to seek medical care without interference. Rather, FedEx asserted its advance notification requirement does not interfere with the right of an injured worker to receive medical care and was justified by legitimate corporate and safety concerns.

FedEx raised several examples of workplace policies that have been recognized by the courts as valid defenses to retaliatory discharge claims, but those polices are easily distinguished from the policy challenged here; none involved action by an employer that imposed any precondition on an employee’s exercise of rights provided by the IL WC Act:

· In McCoy v. Maytag Corp., 495 F.3d 515 (7th Cir. 2007), the employer terminated an employee who had failed to submit post-treatment status reports during a doctor-ordered leave of absence.

· In Casanova v. American Airlines, Inc., 616 F.3d 695 (7th Cir. 2010), the employer was permitted to engage in post-treatment investigation and surveillance to determine whether an employee had fraudulently claimed a false injury, and could terminate the employee for lying and refusing to cooperate with the investigation.

· Goode v. American Airlines, Inc., 741 F. Supp. 2d 877, 893–94 (N.D. Ill. 2010), endorsing the permissibility of a zero-tolerance policy against dishonesty in filing workers’ compensation claims.

In each of these cases cited above, this federal court felt violations of company policy occurred after the employees had already exercised some of their rights under the IL WC Act and in no way interfered with the employee’s ability to obtain medical treatment. In this case, by contrast, this federal court ruled Stevenson could not exercise his right to medical treatment without first complying with a policy imposed by the company that required him to take affirmative actions he would not otherwise have to take. The federal court ruled such actions by the employer were plainly “interference”—an act hampering action or procedure. As we indicate above, we feel any of the three cases above could arguably be ruled “retaliation” for the exercise of workers’ compensation rights—who cares when the worker is fired if the termination is for something that happened at any time during a workers’ comp claim?

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Synopsis: Keep Your Eyes on the Sidewalk! Important Illinois Supreme Court ruling on the “Open and Obvious” Doctrine as it relates to your City’s sidewalks. Analysis by Daniel J. Boddicker, JD.

Editor’s Comment: In a decision that affects all Illinois municipalities, the Illinois Supreme Court determined the issue of whether the “distraction exception” to the open and obvious rule applied in a situation involving a known sidewalk defect.

In Bruns v. City of Centralia, Plaintiff Virginia Bruns stubbed her toe on a crack in the city sidewalk, which allegedly caused her to fall and injure her arm, leg, and knee. Prior to Plaintiff’s fall, she was looking towards the door and the steps of an eye clinic she was attending. Plaintiff testified to her prior knowledge of the sidewalk defect that had developed over a period of several years due to tree roots causing the sidewalk to crack and become uneven. The City was notified of prior trip and falls at the location, but decided not to authorize removal because of the 100-year-old tree’s historic significance.

Plaintiff alleged the City negligently maintained the sidewalk, failed to inspect and repair the sidewalk, and permitted the sidewalk to remain in a dangerous condition. Subsequently, the City filed a motion for summary judgment arguing the defect was open and obvious as a matter of law. Logically, the City further argued it was not required to foresee and protect against injuries from a potentially dangerous condition that was open and obvious.

Plaintiff countered by arguing the City should have reasonably foreseen a pedestrian could become distracted and fail to protect itself against the dangerous condition. The trial court granted the motion for summary judgment.

On appeal, our very liberal Fifth District Appellate Court disagreed and reversed the trial court. That court concluded the City had a duty to remedy the sidewalk defect in a reasonable time frame, but whether the City breached this duty was a fact question for the jury. The Appellate Court stated the key question is the foreseeability of the likelihood an individual’s attention may be distracted from the open and obvious condition, and it is certainly reasonable to foresee that an elderly patron of an eye clinic might have her attention focused on the pathway forward to the door and steps of the clinic as opposed to the path immediately underfoot.

The IL Supreme Court reasoned the only issue is whether under the facts the City owed a duty to plaintiff. It noted the four factors which guide the court on duty analysis as:

Ø the reasonable foreseeability of the injury,

Ø the likelihood of the injury,

Ø the magnitude of the burden of guarding against the injury, and

Ø the consequences of placing that burden on the defendant.

The Supreme Court further reasoned it also had to consider whether the distraction exception to the open and obvious rule applied. Accordingly, they reversed the Appellate Court and reinstated the trial court’s denial of the claim. In doing so, the Supreme Court held that looking elsewhere does not constitute a distraction. Instead, the essential determination is not whether Plaintiff was looking elsewhere, but why she was looking elsewhere.

This article was researched and written by Daniel J. Boddicker, J.D. Dan can be reached with any of your questions or concerns regarding municipality defense and/or general liability defense at dboddicker@keefe-law.com

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Synopsis: Here is Another Reason You Need Reasonable Employment Law Defense Counsel from KCB&A! In a Seventh Circuit Opinion, Judge Easterbrook affirmed a local district judge's allocation of $325,000.00 in attorneys’ fees on a recovery of less than $50,000.00 for a violation of the FMLA. Analysis by Bradley J. Smith, J.D.

Editor's Comment: In a recent opinion written by Seventh Circuit Judge Easterbrook, the Seventh Circuit affirmed the District Court's award to the attorney of an employee $325,000.00 in a Family and Medical Leave Act ("FMLA") action, despite the fact the employee's recovery was less than $50,000.00. The District Court applied the principle that hyper-aggressive defendants who drive up the expense of litigation must pay the full costs/fees of the other side, even if the legal fees seem excessive in retrospect.

In Cuff v. Trans State Holdings, Inc., an employee, whom was an airline supplier's regional manager, represented the supplier and supplier’s two air carriers in their dealings with the airline and airport, brought a FMLA action against the air carriers. After extensive litigation, a partial summary judgment motion, and a jury trial, the employee recovered less than $50,000.00. However, the District Court awarded the prevailing employee attorneys’ fees pursuant to 29 U.S.C. § 2617(a)(3), which authorizes attorneys’ fees to a winning Plaintiff.

The Court noted Defendants injected numerous unnecessary issues and arguments into the case. For example, Defendants' lawyers contended Plaintiff was not qualified for FMLA leave because he was not taking prescribed medications. Instead, the court framed the proper issue before it as whether the employee has medical need for leave at the time he requested time off.

Defendants also attempted to present multiple pieces of “after-acquired evidence” at trial, but the District judge sustained objections based on Federal Rule of Evidence 403. Despite his rulings, Defendants failed to make an offer of proof of the proposed evidence. Consequently, the ruling’s prejudicial effects were waived by Defendants’ failure to preserve them through an offer of proof.

The District Court judge reasoned the attorneys' fees award on the proposition that hyper-aggressive defendants who drive up the expense of litigation must pay the full costs, even if legal fees seem excessive in retrospect. The Seventh Circuit agreed and further reasoned the high total of attorneys' fees was an expected result of the way the defense was conducted. Accordingly, the Seventh Circuit affirmed the award of $325,000.00 in attorneys' fees coinciding with the less than $50,000.00 in actual recovery on the case.

At Keefe, Campbell, Biery & Associates, LLC, we determine the most efficient and practical defense(s) to defend employment law claims brought against you. Although we always zealously defend our clients, we also keep in the forefront all facets of a claim to give our clients the best service possible. When there are the potential for attorneys’ fees awarded to the victorious party, we always include that factor in our initial assessment of the defense of a claim. If you have an employment law claim brought against you, then reach out to the employment law defense team at Keefe, Campbell, Biery & Associates, LLC for an initial assessment of the claim.

This article was researched and written by Bradley J. Smith, J.D. Brad can be reached with any of your questions or concerns regarding employment law and general liability defense at bsmith@keefe-law.com.

KCBA Blog

9-29-14; FedEx Ruling Endangers Mandatory Accident Reporting Rules; "Distraction Exception" in Muni Sidewalk Claims Rev'd by IL Supreme Ct; Monster Legal Fee Award with analysis by Brad Smith and more