8-20-12; Shots fired! Illinois Appellate Court invokes the Workers’ Compensation Act’s exclusive remedy provision to bar Widow’s Common Law Negligence claim against Employer for workplace shooting

In Rodriguez v. Frankie’s Beef/Pasta and Catering, Decedent had a disagreement and then an altercation with a co-worker over circumstances of the work. The next day, the other worker shot and killed Decedent. The widow of Decedent filed a negligence claim against his employer for negligent hiring and retaining the erstwhile nonviolent but later homicidal coworker. For reasons not clear in the record, it appears the widow or her counsel didn’t file a WC death claim for the passing of Decedent.

The Circuit Court of Cook County granted the employer’s motion for summary judgment reasoning the exclusive remedy provision of the Workers’ Compensation Act, Section 5(a) applied to bar Plaintiff’s negligence claim. Please note this motion was granted despite the fact no workers’ compensation benefits were paid.

Section 5(a) provides

No common law or statutory right to recover damages from the employer…for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act,…or otherwise entitled to recover damages for such injury.

According to our Supreme Court, the IL WC act prohibits employees from bringing a common law cause of action for negligence resulting in injury against an employer unless the employee can show the injury

(1) Was not accidental;

(2) Did not arise from employment;

(3) Was not received in the course of employment; or

(4) Was not compensable under the Act.

It was undisputed Decedent was injured in the course of employment—he was on the job and working when shot. And, as several witnesses testified the altercation leading to the shooting involved the coworker’s demotion, the Circuit and Appellate Courts deemed the otherwise unforeseen criminal attack to arise from employment. Last, Decedent’s injuries were compensable under the IL WC Act as his verbal taunting of the coworker did not make him the initial aggressor.   

Regarding whether the shooting was “accidental,” the Court noted the employer did not direct or expressly authorize the shooting and was unaware of tensions prior to altercation. Thus, according to the IL Appellate Court, Second Division, the employee’s death was "accidental" and Decedent's sole remedy against the employer was under the IL WC Act. Please note the failure of Plaintiff’s counsel to proceed under the IL WC Act to get appropriate death benefits under Section 7 of the IL WC Act did not protect the widow from the motion to dismiss the common law action. Unlike the odd anti-business ruling in Country Insurance and Financial Services v. Roberts, the IL Appellate Court did not rule the IWCC has sole and primary jurisdiction to determine compensability.

Please note the WC death claim would have had a value to the widow of approximately $600,000. When we teach law students, we are careful to point out a diligent Plaintiff/Petitioner’s attorney investigates and proceeds on all potential avenues of relief to avoid malpractice concerns and criticism. This ruling is on the web at: http://www.state.il.us/court/opinions/AppellateCourt/2012/1stDistrict/1113155.pdf

This article was researched and written by Sean C. Brogan, J.D. Please feel free to contact Sean about it at sbrogan@keefe-law.com.

8-13-12; Attacking FMLA abuse—Joseph F. D’Amato, J.D. analyzes an important federal ruling summarily dismissing a questionable FMLA beef

In this significant decision the Federal Appeals Court held an employer can refuse to reinstate an employee returning from FMLA leave if it has an “honest suspicion” the employee misused his federally required unpaid leave time. We feel the ruling provides a game plan to safely terminate employees who misuse their federal rights.

Under the Family Medical Leave Act (FMLA), an eligible employee is entitled to as many as twelve weeks of leave per year for a variety of reasons, including “to care for the spouse, or a son, daughter, or parent of the employee, if such spouse, son, daughter or parent has a serious health condition.” 29 U.S.C. §2612(a)(1)(C).

We understand the majority of folks taking FMLA leave due so for the precise reasons outlined in the statute. However, what remedies does an employer have if it has suspicions an employee might be abusing his or her FMLA leave? The United States Court of Appeals, Seventh Circuit faced this situation in the case of Scruggs v. Carrier Corporation, 2012 WL 3140113 (C.A.7 Ind.).

Plaintiff Scruggs, a brazier for Defendant Carrier Corporation (Carrier), took intermittent FMLA leave from 2004 through 2007 in order to help care for his mother who had been moved to a nursing home. In 2006, Carrier implemented a program to combat employee absenteeism and suspected FMLA abuse. Part of the program included placing employees suspected of abuse under surveillance in order to determine if they were abusing FMLA leave. Plaintiff was a Carrier employee suspected of FMLA abuse.

Carrier placed Plaintiff under surveillance four times between 2006 and 2007. On the fourth occasion, July 24, 2007, video surveillance demonstrated Plaintiff did not leave his home the entire day, save for one trip to the mailbox. Plaintiff previously completed FMLA paperwork advising Carrier he would be taking the entire day off on July 24th to shuttle his mother between her nursing home and doctor appointments. Surveillance documented claimant didn’t shuttle anyone anywhere on that day—he was at home all day.

Carrier later confronted Plaintiff about its concerns he was abusing FMLA leave. When given an opportunity to explain his absence, Plaintiff advised Carrier he could not recall the events of July 24, 2007, but was certain he was helping his mother and was not abusing his FMLA leave. He subsequently produced documentation from his mother's nursing home and doctor's office, which only raised further questions for Carrier, as the documents produced were facially inconsistent and conflicted with Carrier's internal paperwork. Plaintiff was eventually terminated and he filed suit against Carrier for interference and retaliation under FMLA.

To prevail on a claim for FMLA interference, an employee must prove that: (1) he was eligible for FMLA protections; (2) his employer was covered by the FMLA; (3) he was entitled to leave under the FMLA; (4) he provided sufficient notice of his intent to take FMLA leave; and (5) his employer denied him FMLA benefits to which he was entitled. Family and Medical Leave Act of 1993, § 105(a)(1), 29 U.S.C.A. § 2615(a)(1). To defeat a claim for FMLA interference in the territories covered by the Seventh Circuit, an employer need only show it refused to reinstate the employee based on an “honest suspicion” that he was abusing his leave.

Carrier filed a Motion for Summary Judgment, which was granted by the District Court and upheld by our Seventh Circuit Court of Appeals. Both courts held the inconsistencies between Plaintiff’s story and the events captured during video surveillance were enough to raise an “honest suspicion” Plaintiff was abusing FMLA leave. Thus, Carrier was not liable for interfering with Plaintiff’s statutory FMLA rights.

If you have concerns about absenteeism or abuse of FMLA leave by your employees, our vote is to institute a companywide program similar to the one put in place by Defendant Carrier. KCB&A is happy to assist in putting this process into place for and with you. We feel the best evidence of fraudulent behavior is video documentation of fraudulent behavior. It is also the best defense in the event interference or retaliation claims are brought against you.

This article was researched and written by Joseph D’Amato, J.D. He can be reached at jdamato@keefe-law.com.

8-13-12; Can a Plaintiff file a complaint and maintain a lawsuit or Application for Adjustment of Benefits under a fake name? In a hotly divided ruling, our IL Supreme Court says yes

Like much of our country, Illinois has lots of folks who are using fake ID’s and phony names to get along. The problem is what to do when they come to our court system to redress wrongs and use the same fake names in sworn pleadings? In our view, this situation is a litmus test for the willingness of our courts to protect Plaintiffs and their attorneys. We assure our readers ITLA and the Plaintiff bar want such lawsuits to remain active and withstand motions to dismiss so they get paid.

We feel the only reason a claimant would file a suit in a fake name is either passive stupidity or to actively hide something in their past. If the defense can prove the claim was filed in a fake name to actively hide something, it might not turn out well for Plaintiff, even after this ruling. Our strong practice tip for the Plaintiff bar in the GL, EPLI and WC arenas is to file suits or Applications in every name a Plaintiff/Petitioner has ever been known. We still believe you are taking a major risk/chance not to follow that practice. If you carefully read this hotly divided ruling, the Illinois courts retained the ability to dismiss a claim when Plaintiff files an action in a faked name. The IL Supreme Court just better outlined what would be needed to do so.

In Santiago v. E.W. Bliss Company, et. als., claimant filed suit in the phony name “Juan Ortiz.” He later admitted his given name was Rogasciano Santiago. Upon learning of the fake name, Defendants moved to dismiss as a sanction for Plaintiff intentionally filing a complaint using a fictitious name without leave of court. Defendants also argued the original complaint was a nullity, because it was filed in a fake name. When it was later amended to substitute Plaintiff’s real name, Defendants argued the later amendment, after the statute of limitations, could not “relate back” and the matter was therefore time-barred.

The Circuit Court denied Defendants’ motions to dismiss but certified their order, pursuant to Supreme Court Rule 308, to resolve the issues on an expedited basis. The Appellate Court held:

(1) The Circuit Court has discretion to dismiss such a claim as a sanction, and

(2) The Circuit Court must dismiss the matter because the original complaint was a nullity and the amendment after the limitations period expired cannot relate back to make the claim viable.

On review, the IL Supreme Court reversed in part and remanded the matter. The majority opinion held the Circuit Court had discretion to dismiss with prejudice under these circumstances.  However, it held dismissal was justified only when

(1) There is a clear record of willful conduct showing deliberate and continuing disregard for the court’s authority; and

(2) There is a finding lesser sanctions were inadequate to remedy both the harm to the judiciary and the prejudice to the opposing party.

Our highest state court disagreed with the Appellate Court as to the nullity issue. It held the use of a fictitious name, without court approval, did not automatically render the original complaint a nullity and an amended complaint correcting the name may relate back to the initial filing to avoid the effect of the statute of limitations.

The decision brought a special concurrence by Justice Karmeier who defined the difference between a “fictitious person or party” and a “fictitious name.” The decision brought the concurrence by Justice Karmeier, a special concurrence by Justice Ann Burke, and a strong dissent by Justice Thomas, joined by Justice Garman that also discussed the interplay of “misnomer” under Code of Civil Procedure section 2-401.

The decision is on the web at: http://www.state.il.us/court/opinions/SupremeCourt/2012/111792.pdf. We appreciate your thoughts and comments.