Corah v. The Bruss Co.

2017 IL App (1st) 161030
No. 1-16-1030
THIRD DIVISION
March 29, 2017
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
JOSEPH CORAH, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 2012 L 003916
)
THE BRUSS COMPANY, )
) The Honorable
Defendant-Appellee. ) James E. Snyder,
) Judge, presiding.
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and
opinion.
OPINION
¶1 This appeal arises from the trial court’s order granting summary judgment on plaintiff
Joseph Corah’s whistleblower claim to defendant The Bruss Company, an affiliate of Tyson
Foods (Tyson). On appeal, plaintiff contends that the trial court erroneously granted defendant’s
motion for summary judgment because defendant instructed plaintiff to participate in an activity
that directly violated an injured employee’s rights to benefits under the Workers’ Compensation
Act (820 ILCS 305/1 et seq. (West 2012)). In addition, plaintiff contends that the trial court erred
No. 1-16-1030
in barring plaintiff from claiming emotional distress and punitive damages pursuant to the
Whistleblower Act (740 ILCS 174/1 et seq. (West 2012)).
¶2 BACKGROUND
¶3 We recite only those facts necessary to understand the issues raised on appeal. This case
arises from plaintiff’s termination by defendant for allegedly refusing to participate in a record
falsification stemming from employee Yvette Albea’s accident. In April 2012, plaintiff
commenced this action alleging that his termination from defendant’s employ violated section 20
of the Whistleblower Act. 740 ILCS 174/20 (West 2012). Specifically, plaintiff argued that his
termination was a direct result of his refusal to file a false accident investigation report (AIR),
which would have been used as a basis for Albea’s claim for benefits pursuant to the Workers’
Compensation Act.
¶4 Depositions and affidavits submitted during discovery revealed the following. Plaintiff
testified that defendant employed him in February 2010 as the bone-in-steak production
supervisor, reporting to plant superintendant Darwin Hanson. Plaintiff’s safety-related
responsibilities consisted of monthly staff trainings, safety committee discussions about potential
hazards, and weekly plant walk-throughs. If a workplace injury occurred, the supervisor of the
department would investigate the incident and complete an AIR. The AIR contained a section
referred to as the “Five Whys,” which consisted of a series of why questions that a supervisor
would ask in succession to get to the root cause of an injury or illness. Defendant believed a copy
of the AIR was kept in-house and additional reports would be submitted to corporate, the
insurance company, and the Occupational Safety and Health Administration (OSHA).
¶5 On September 6, 2010, Albea, a food handler under plaintiff’s supervision, qualified as a
higher-paid butcher on the band saw. Albea initially performed well, but eventually her speed
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and efficiency diminished as she began to experience lightheadedness and diaphoresis, causing
her glasses to fog up. Plaintiff repeatedly voiced his concerns to Hanson about Albea’s situation,
and on September 29, 2010, plaintiff disqualified Albea. But after she allegedly threatened to file
a union grievance, against plaintiff’s strong objection, Hanson and plant superintendent Herman
Ochoa allowed Albea to return to the band saw. Shortly thereafter, she sustained a laceration of
the top of her right, middle finger. Following an investigation of the incident, plaintiff concluded
that the root cause of Albea’s injury was Ochoa and Hanson’s carelessness in putting Albea back
on the band saw. When plaintiff met with Hanson, Ochoa, and Bob Morisette, defendant’s
human resource manager, they all concluded that plaintiff’s explanation was not the root cause of
Albea’s injury. Thus, plaintiff was instructed to redo the AIR to put “the fault on [Albea] versus
the fault on poor leadership and choices of upper management.” Plaintiff refused and was
terminated for insubordination.
¶6 Following his termination, plaintiff spoke to Albea several times over the telephone. She
allegedly told plaintiff that defendant instructed Albea to report the accident occurred outside the
workplace. Plaintiff advised Albea that defendant violated her rights by failing to give her a
choice in her medical care immediately following the accident when Ieon Bhairoo, another
production supervisor, took Albea to the immediate care clinic instead of the hospital emergency
room. Plaintiff, however, did not know if defendant refused to pay Albea’s medical bills,
challenged whether she was injured at work, or deterred her from seeking workers’
compensation benefits.
¶7 Hanson testified that after hearing plaintiff’s concerns, he decided to pull Albea off the
band saw for a couple of days and suggested she consult with a doctor. Albea was upset, but
Hanson explained it was a temporary decision. When Albea communicated that she was feeling
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better, Hanson consulted with Morisette and they agreed to put her back on the band saw. After
Albea’s injury, Hanson instructed plaintiff to complete the “Five Whys” portion of the AIR to
determine the “root cause” of Albea’s accident. Hanson, however, “did not ask [plaintiff] to
change or delete anything or leave anything out.”
¶8 Ochoa further testified that the purpose of the “Five Whys” portion of the AIR was to
prevent the same accident from happening again. For instance, Ochoa wanted to know how
Albea was standing and what position her hands were in. Ochoa terminated plaintiff because he
“outright refused” to put this type of information in the AIR, even though Ochoa was going to
allow plaintiff’s typewritten concerns regarding management to be included. Morisette reiterated
Ochoa’s concerns and testified that the incident was not video recorded because Albea was
standing in a blind spot. Thereafter, Bhairoo investigated Albea’s injury and completed the AIR
to defendant’s specifications. He noted that Albea was cutting steak from a short loin when a
piece jerked and the blade cut her finger.
¶9 Defendant’s safety manager Lorrie Baker attested that she rejected plaintiff’s AIR
because plaintiff did not complete the “Five Whys” portion by identifying the root cause of
Albea’s injury. Specifically, Baker “wanted to know how and why Ms. Albea’s finger made
contact with the saw blade.” AIRs were internal documents that were not submitted to OSHA or
any other governmental agency. Defendant separately maintained an OSHA Form 300 to record
all work place injuries and a separate workers’ compensation report. Baker personally prepared
the workers’ compensation report for Albea’s injury.
¶ 10 Jamie Bolinger, Tyson’s workers’ compensation administrator, attested that in processing
an employee’s injury he had access to the AIR report, but AIRs were not submitted to a state
workers’ compensation commission. Tyson and its affiliates were self-insured in the workers’
compensation area and paid out claims directly from their own funds. Defendant stipulated that
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No. 1-16-1030
Albea was injured in the workplace and Bolinger approved Albea’s application for workers’
compensation benefits without objection. Albea never litigated any claim through the Illinois
Workers’ Compensation Commission because there was no dispute that she was entitled to
benefits. Albea also testified that her injury was work-related and she did not recall defendant
trying to interfere with workers’ compensation benefits.
¶ 11 In April 2014, defendant filed a motion for summary judgment arguing plaintiff failed to
demonstrate that he refused to participate in any activity that would have resulted in a violation
of any state or federal law, rule, or regulation, required to prevail under the Whistleblower Act.
Further, plaintiff failed to establish a causal link between his alleged protected activity and his
termination. After oral arguments, the trial court allowed plaintiff to file a supplemental report
with citation and evidence to any federal or state law, rule, or regulation that would have been
violated with his alleged refusal to complete the “Five Whys” portion of the AIR. Thereafter,
plaintiff cited to several statutes under the Workers’ Compensation Act (820 ILCS 305/4(h),
6(b), 25.5 (West 2012)), as well as violations under OSHA for filing a false statement regarding
a work-related injury. On September 10, 2014, the trial court granted defendant’s motion for
summary judgment in regards to plaintiff’s claims for emotional distress and punitive damages
but granted leave for plaintiff to file an amended complaint to comport with proofs. Defendant
then moved to strike the first amended complaint. On December 18, 2014, the trial court denied
defendant’s request, but ordered plaintiff to file a second amended complaint with no references
to violations of OSHA. Plaintiff complied and included a claim for common-law retaliatory
discharge.
¶ 12 Thus, in October 2015, defendant filed a second motion for summary judgment. On April
7, 2016, after briefing and a hearing, the trial court granted summary judgment regarding the
whistleblower claim holding that plaintiff did not identify how or what particular statute his
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conduct would have violated, other than the Workers’ Compensation Act in general. The court,
however, allowed plaintiff’s common-law retaliatory discharge claim to proceed. On March 8,
2016, pursuant to 735 ILCS 5/2-1009 (West 2012), plaintiff voluntarily dismissed his second
amended complaint 1. Thereafter, plaintiff filed a timely notice of appeal as to the trial court’s
April 7, 2016, order granting summary judgment to defendant on the whistleblower claim. See
Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503 (1997) (“[t]he order of
voluntary dismissal, because it disposed of all matters pending before the circuit court, rendered
all orders which were final in nature, but which were not previously appealable, immediately
final and appealable”).
¶ 13 ANALYSIS
¶ 14 Plaintiff contends that the trial court erroneously granted defendant’s motion for
summary judgment because defendant asked plaintiff to falsify the AIR which directly violated
Albea’s rights to benefits under the Workers’ Compensation Act. Summary judgment is proper
where the pleadings, admissions, depositions, and affidavits demonstrate there is no genuine
issue as to any material fact so that the movant is entitled to judgment as a matter of law. Ioerger
v. Halverson Construction Co., 232 Ill. 2d 196, 201 (2008); 735 ILCS 5/2-1005 (West 2012). In
determining whether a genuine issue of material fact exists, the court must consider such items
strictly against the movant and liberally in favor of its opponent. Williams v. Manchester, 228 Ill.
2d 404, 417 (2008). We review the trial court’s order granting summary judgment de novo.
Weather-Tite, Inc. v. University of St. Francis, 233 Ill. 2d 385, 389 (2009).
¶ 15 In order to prevail on a claim under section 20 of the Whistleblower Act, a plaintiff must
establish that (1) he refused to participate in an activity that would result in a violation of a state
or federal law, rule or regulation and (2) his employer retaliated against him because of the
1
In June 2016, plaintiff refilled his common law retaliatory claim which is pending below and not at issue
on this appeal.
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refusal. 740 ILCS 174/20 (West 2012); Young v. Alden Gardens of Waterford, LLC, 2015 IL
App (1st) 131887, ¶ 48. “This court has held that the language of section 20 is unambiguous and
that a ‘plaintiff must actually refuse to participate’ in an activity that would violate a law or
regulation.” Lucas v. County of Cook, 2013 IL App (1st) 113052, ¶ 25 (quoting Sardiga v.
Northern Trust Co., 409 Ill. App. 3d 56, 62 (2011)). Plaintiff bears the burden of establishing his
claim under the Whistleblower Act. Sardiga, 409 Ill. App. 3d at 64-65.
¶ 16 Here, plaintiff suggests that defendant violated section 6(b) of the Workers’
Compensation Act by asking plaintiff to file a false AIR report. 820 ILCS 305/6(b) (West 2012)
(“[e]very employer *** shall maintain accurate records of work-related deaths, injuries and
illness”). While we appreciate that plaintiff’s interpretation of Albea’s accident was caused by
plaintiff’s superiors allowing Albea to remain qualified on the band saw, this does not mean that
defendant instructed plaintiff to prepare a false AIR of Albea’s accident. The completed AIR,
which was prepared by Bhairoo after plaintiff refused, stated that Albea “was cutting [the] club
end on a short loin when [the] blade caught the glove [and] pulled the right middle finger into the
saw blade.” This explanation was the root cause of Albea’s injury, and thus, did not result in a
fraudulent AIR. In making our determination, we find Lucas dispositive.
¶ 17 In Lucas, the gynecologist plaintiff filed a whistleblower claim against the defendant
after she was terminated for refusing to treat male patients with sexually transmitted diseases
(STDs) or attend training to treat male patients with STDs. Lucas, 2013 IL App (1st) 113052,
¶ 1. Specifically, the plaintiff alleged that the defendant violated title 68, section 1285.240 of the
Administrative Code (68 Ill. Adm. Code 1285.240 (2005)) “‘by requiring [the plaintiff] to
perform services as a physician without adequate training’ and for offering her inadequate
training.” Id. ¶ 7. The reviewing court determined that the plaintiff’s reliance on this section was
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misplaced because it “lists standards that the Medical Disciplinary Board considers when
disciplining physicians licensed under the Medical Practice Act of 1987.” Id. ¶ 28. The section
did not prohibit the defendant’s request that the plaintiff “treat male patients or attend training to
treat male patients.” Id. Thus, since the plaintiff failed to establish that the defendant asked her to
participate in an illegal activity, summary judgment was appropriate. Id. ¶ 30. See Ulm v.
Memorial Medical Center, 2012 IL App (4th) 110421, ¶ 36 (the trial court did not err by granting
the defendant summary judgment on the plaintiff’s whistleblower claim when the plaintiff’s
refusal to sign a certification accompanying a subpoenaed medical record did not violate any law
“even assuming [the] defendant fired [the plaintiff] in retaliation for so refusing”); Sardiga, 409
Ill. App. 3d at 64 (the evidence in the record failed to establish that the plaintiff’s refusal to
participate in a “poor business practice” was sufficient to satisfy the requirements of the
Whistleblower Act).
¶ 18 Further, we find plaintiff’s sole reliance on Young misplaced. In Young, the plaintiff
nurse filed a whistleblower claim against the defendant employer, a licensed long-term care
facility, for terminating the plaintiff’s employment after she refused to falsify residents’
medication administration records at her superior’s request. Young, 2015 IL App (1st) 131887,
¶¶ 3-7. The reviewing court observed that “[f]alsifying a patient’s medical record with fabricated
results of blood glucose tests would have warranted revocation of [the plaintiff’s] license” under
provisions of the Nurse Practice Act (225 ILCS 65/50-1 et seq. (West 2012)). Young, 2015 IL
App (1st) 131887, ¶ 50. Therefore, the court concluded that the practice the defendant asked the
plaintiff to engage in was illegal. In the instant case, as stated above, defendant did not ask
plaintiff to falsify the AIR but merely to include the technical cause of Albea’s accident. In
addition, defendant’s safety manager Baker established the AIR was an internal document that
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would not have been submitted to any government agency. And in any event, testimony from
plaintiff’s superiors revealed that defendant was going to allow plaintiff’s typewritten notes into
the AIR voicing plaintiff’s concerns about Albea being permitted to remain qualified on the band
saw.
¶ 19 Contrary to plaintiff’s assertion, the record demonstrates that defendant did not interfere
with Albea’s rights to procure benefits under section 4(h) of the Workers’ Compensation Act.
820 ILCS 305/4(h) (West 2012) (“[i]t 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”). Although plaintiff suggests that defendant asked Albea to
report her injury occurred outside the workplace, this is unsupported by the record. Baker
personally prepared the workers’ compensation report for Albea’s injury and Tyson
administrator Bolinger approved Albea’s application for workers’ compensation benefits without
any objection from defendant. Even plaintiff acknowledged that defendant never asked plaintiff
to misstate where Albea’s injury occurred. Additionally, there is no evidence that defendant
interfered with Albea seeking her preferred choice of medical treatment. Nor does Albea recall
defendant interfering with her rights to workers’ compensation benefits. Moreover, we fail to see
how defendant’s alleged treatment of Albea after plaintiff’s termination is relevant to whether or
not the activity defendant wanted plaintiff to engage in, i.e., redoing the “Five Whys” portion of
the AIR, violated any law, rule or regulation. Accordingly, plaintiff fails to establish that
defendant instructed plaintiff to engage in unlawful behavior or interfered with Albea’s rights
under the Workers’ Compensation Act. See 820 ILCS 305/25.5 (West 2012) (making it unlawful
for any employer to interfere with a worker’s rights to benefits). Accordingly, we need not
consider whether defendant retaliated against plaintiff. See also Michael v. Precision Alliance
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Group, LLC, 2014 IL 117376, ¶ 32 (the supreme court noted the burden rests solely on the
plaintiff to prove that the cause of the discharge was retaliatory).
¶ 20 Plaintiff next contends that the trial court erred in dismissing his claims for emotional
distress and punitive damages when the court ruled on defendant’s first motion for summary
judgment on September 10, 2014. Likewise, plaintiff suggests that the trial court erred in its
December 18, 2014 order instructing plaintiff to remove any references to OSHA from his
second amended complaint. Defendant, however, argues that we lack jurisdiction to review these
additional orders. Illinois Supreme Court Rule 303(b)(2) provides that a notice of appeal “shall
specify the judgment or part thereof or other orders appealed from and the relief sought from the
reviewing court.” Ill. S. Ct. R. 303(b)(2) (eff. June 4, 2008). Unless there is a properly filed
notice of appeal, the appellate court lacks jurisdiction over the matter and is obliged to dismiss
the appeal. Calumet School District No. 132 v. Illinois Workers’ Compensation Comm’n, 2016
IL App (1st) 153034WC, ¶ 37. A notice of appeal confers jurisdiction on a court of review to
consider only the judgments or parts of judgments specified in the notice of appeal. General
Motors Corp. v. Pappas, 242 Ill. 2d 163, 176 (2011). Thus, “[t]he purpose of the notice of appeal
is to inform the prevailing party that the other party seeks review of the trial court’s decision.”
(Internal quotation marks omitted.) Id.
¶ 21 In the case sub judice, plaintiff did not include the trial court’s September 10, 2014, order
or the December 18, 2014, order in his notice of appeal. Therefore, defendant was only put on
notice that plaintiff would be seeking review on the trial court’s April 7, 2016, order granting
defendant summary judgment on the whistleblower claim. Therefore, we find this court lacks
jurisdiction to consider the dismissal of the claims involving emotional distress and punitive
damages. See Alpha Gamma Rho Alumni v. People ex rel. Boylan, 322 Ill. App. 3d 310, 313
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(2001) (“[w]hen an appeal is taken from *** a specified judgment, the appellate court acquires
no jurisdiction to review other judgments or parts” of judgments not specified or fairly inferred
from the notice). As to the OSHA claim, however, it was arguably inferred from the notice and
we find defendant suffers no prejudice for us to address it here. See In re Marriage of O’Brien,
2011 IL 109039, ¶ 22 (we will liberally construe a notice of appeal “ ‘if the notice, when
considered as a whole, fairly and adequately sets out the judgment complained of and the relief
sought so that the successful party is advised of the nature of the appeal’ ”) (quoting Burtell v.
First Charter Service Corp., 76 Ill. 2d 427, 433-34 (1979)).
¶ 22 In plaintiff’s first amended complaint, plaintiff cites to several provisions under OSHA,
arguing that “defendant attempted to force plaintiff to create a false account of a workplace
injury by forcing plaintiff to recreate the facts and circumstances surrounding Ms. Albea’s
injuries in a manner that was favorable to defendant and would have provided false information
to OSHA if an investigation occurred.” But plaintiff fails to explain how defendant instructing
plaintiff to rewrite his AIR to identify how Albea’s finger made contact with the band saw blade,
i.e., the root cause of Albea’s injury, equates to defendant asking plaintiff to file a false report
under OSHA that would have impeded an investigation. The record also suggests that AIRs were
internal documents not submitted to OSHA as defendant maintained a separate OSHA Form 300
to record all work related injuries. In addition, plaintiff fails to further develop his argument on
appeal and we need not consider this matter further. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6,
2013); Heupel v. Jenkins, 379 Ill. App. 3d 893, 900 (2008) (failure to assert a well-reasoned
argument supported by legal authority results in waiver). Consequently, as the record presents no
genuine issue of material fact, defendant was entitled to summary judgment as a matter of law.
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¶ 23 CONCLUSION
¶ 24 Based on the foregoing, we affirm the judgment of the circuit court of Cook County.
¶ 25 Affirmed.
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