Laid-Off Carpenter Fails to Establish Discharge in Retaliation for Workers' Compensation Claim

March 2017

In Illinois, employers should tread carefully when considering whether to terminate an employee who has exercised his or her rights under the Illinois Workers' Compensation Act. Illinois recognizes a cause of action for retaliatory discharge in which a successful plaintiff may recover not only actual damages but punitive damages as well. An employer with a legitimate business reason to terminate an employee who has claimed or received workers' compensation benefits often faces a difficult decision. Retaliatory discharge actions typically boil down to one issue: the employer's motive for discharging the employee. When the employer establishes a valid nonpretextual reason for termination, the employer can mount a successful defense to retaliatory discharge claims. A recent decision from the Illinois Appellate Court First District,Vulpitta v. Walsh Construction Co., 2016 IL App (1st) 152203, provides a good example of one employer's successful defense.

In Vulpitta, the court affirmed summary judgment in favor of Walsh Construction Company (Walsh) finding the plaintiff failed to establish he was terminated in retaliation for seeking workers' compensation benefits. The plaintiff was a carpenter for Walsh who suffered a work-related injury in March of 2008 for which he filed a workers' compensation claim. The plaintiff had a second work-related injury in August of 2011, but was released to return to work with no restrictions the following day and no workers' compensation claim was filed at that time. In December of 2011, the plaintiff rejected an offer to settle his workers' compensation claim for the March 2008 accident. A Walsh supervisor testified the plaintiff was laid off on May 24, 2012, due to lack of work.

The plaintiff saw a physician in July of 2012 and contacted a Walsh secretary asking for records related to the August 2011 injury for his "workmen comp claim." The secretary provided the information requested without informing plaintiff's supervisor. The plaintiff filed a workers' compensation claim for the August 2011 injury on July 6, 2012. Several days later, on July 11, 2012, the plaintiff met his supervisor - a personal friend of many years - for lunch. According to the plaintiff, his supervisor told him, "I have to let you go," and "I don't want to do this." The plaintiff alleged he was "permanently" discharged at this meeting.

In affirming summary judgment in favor of Walsh, the Appellate Court held the plaintiff failed to establish a causal connection between the plaintiff's exercise of rights under the Illinois Workers' Compensation Act and his discharge. First, the court found significant the fact that the plaintiff worked continuously on nine different projects from the time he filed his first workers' compensation claim to the time of his layoff in 2012. The court noted the plaintiff was the last carpenter to be laid off and Walsh did not hire for the remainder of 2012. Finally, the plaintiff's testimony that he heard a co-worker was fired because he was getting "hurt a lot," lacked foundation and was contradicted by testimony the co-worker retired.

The plaintiff's unsupported conclusions and speculation regarding retaliatory motive as the cause of his termination were not sufficient to overcome Walsh's evidence establishing the termination based on lack of work.

Employers can take steps to avoid retaliatory discharge lawsuits and enhance their chance of successfully defending these claims. First and foremost, employers should always carefully document the reason for terminating an employee. In addition, employers can consider a resignation agreement in which the employee releases the employer from any and all employment-related claims.