Illinois Lawyer Blog

The Illinois Supreme Court recently handed down an important retaliatory discharge decision in Smith v. Waukegan Park District. The facts are pretty straightforward - Greg Smith worked as a seasonal park maintenance employee for the Waukegan Park District. On May 8, 2002, Smith suffered a work-related injury requiring medical treatment and some time away from work.

On June 24, 2002, Smith returned to work. The Park District, in the person of Smith's supervisor, Mike Trigg, insisted on a drug and alchohol test, which Smith refused. Smith felt the testing was "retaliatory harassment" for filing a Workers' Comp claim. Trigg then informed Smith that he was discharged, supposedly for his failure to take the drug and alchohol test. Smith then filed his retaliatory discharge claim. The Park District moved to dismiss the case under the Illinois Tort Immunity Act. The trial court granted the motion. The Appellate Court upheld the dismissal. The plaintiff then appealed to the Illinois Supreme Court.

The Park District had two primary immunity arguments. First, the Park District asserted it was immune from Smith's retaliatory claim under 2-109 of the Illinois Tort Immunity Act. Section 2-109 of the Act provides immunity to local public entities when the entity's employee could not be held liable for the act or omission that caused the alleged injury. The Park District made that argument relying upon Buckner v. Atlantic Plant Maintenance, Inc. In Buckner, the Supreme Court held that even if an employee hatches the plan to fire the employee, the actual discharge is authorized by the employer. The Buckner Court further explained that the motive for a firing in light of a Worker' Comp claim - avoidance of employee medical bills and related expense - go to the employer, and not the employee. Based on those findings the Buckner court held that the tort of retaliatory discharge could only be committed by an employer. The Park District, argued[in a somewhat circular argument]that since Buckner precluded any liability on the part of the supervisor, under 2-109, the District could not be liable.

The Supreme Court in Smith, though, wasted little time in disposing of the Park District's first argument. The Court pointed out that the Smith's supervisor hadn't caused the discharge - the District did. Therefore, 2-109 does not apply in retaliatory discharge cases because the employer, not the employee, causes the harm. As a result, the District was not immune from a retaliatory claim.

The District also argued that it enjoyed immunity under 2-201 of the Tort Immunity Act. Section 2-201 provides that a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or ommission in determining policy when exercising that discretion. In shooting the District's second argument down, the Court held the public employees possess no immunized discretion to discharge employees for exercising their Workers' Compensation rights.

The Supreme Court reversed the judgments of the Appellate and trial courts and remanded the case back to the trial court for further proceedings consistent with the Court's opinion.

From the "You Can't Make this Stuff Up Department"...

Saw a number of reports today of an Illinois lawyer who was suspended by the Illinois Attorney Registration and Disciplinary Committee ["ARDC"]because of an unusual payment plan he concocted with one of his clients. The story begins in 2001 when the lawyer, Scott Robert Erwin was visiting Heartbreakers, a Compton, Illinois strip club. Erwin got to talking to one of the dancers[the dancers can be very friendly at these places] and the two realized, after a couple of minutes, that they had previously spoken about some legal matters. Erwin then agreed to represent the stripper on some legal matters. That's where the payment plan comes in...and I'll bet you know where this is headed. According to the ARDC report, Erwin and the dancer agreed that she would perform some nude dances in his office as a way to cut down on the legal fees. The dancer claimed that from February through June of 2002 she would travel to Erwin's office, strip, and then dance for 30 minutes. The dancer also claimed that on some of these occasions, Erwin would touch her in an inappropriate manner. Erwin denied any inappropriate touching.

And the stripper had another complaint. She claimed that Erwin continued to frequent Heartbreakers. [As an aside, I would have provided a link, but cursory research revealed a whole lot of strip clubs going by the name of "Heartbreaker" and I just don't have the time...] But according to the stripper, Erwin made an enormous tactical error. When she danced for him at the club, he wouldn't pay her for dances. It is my understanding from some field research many years ago, that strippers can become rather grumpy if not appropriately compensated for a dance.

The dancer went to the DeKalb, Illinois police in 2002, and an investigation led to a hearing before the DeKalb County Grand Jury where prosecutors sought a charge of criminal sexual assault. The Grand Jury refused to indict Erwin.

The ARDC suspended Erwin for 15 months. The woman involved is no longer working as a dancer.

Moral of the story? Don't get on a stripper's bad side.

In a September 14, 2008 editorial, the Chicago Tribune chastised the Consumer Product Safety Commission[CPSC] and its Chairman, Nancy Nord, for an inexplicable failure to act after receiving information about potentially lethal design defects in certain baby bassinets. As detailed in my September 11, 2008 post, on August 27, 2008, the CPSC ordered a recall of 900,000 Simplicity Bassinets after a Tribune story revealed that a design flaw may have been a factor in the strangulation death of two infants. The next day Graco contacted the CPSC and advised that there were an additional 200,000 Simplicity bassinets floating around with the same precise defect, but marketed under the Graco name. As the editorial notes, the CPSC sat on the information for two weeks and finally issued a warning when the Tribune published another story about the Graco bassinets. As the editorial piece points out, just this year the CPSC was given more staff, more money and more freedom to keep the public informed about dangerous products. Chairman Nancy Nord was apparently against the recent innovations and the Tribune, a reliably Republican paper, has called for her resignation for "gross incompetence". Senators Mark Pryor(D-Ark) and Dick Durbin (D-Ill) have requested a meeting with Nord. They are understandably dumbfounded why the Commission refused to make the public aware of a very real threat to infants. The editorial goes on to note however, that there really isn't much mystery to the inertia demonstrated by the agency. Nord was against the recent reforms and her agency has ignored or resisted efforts by other agencies to assist with investigations of products that have caused children to die. In fact, the editorial notes, the agency seems bent on protecting the manufacturers of dangerous products. The Tribune closed the editorial by recommending that Nord "...find an exit sign and follow it."

According to a report in today's Chicago Tribune both federal regulators and Graco Children's Products withheld warnings about potentially dangerous bassinets being marketed under the Graco name. The article, written by Patricia Callahan, explains that on August 27, 2008, the U.S. Consumer Products Safety Commission had issued a urgent warning, advising consumers not to use Simplicity Bassinets, as a design flaw had already resulted in the strangulation deaths of two infants. Both children had become entrapped in metal bars contained in the product's framework.

The article goes on to detail how Graco officials saw the warning on August 28, 2008, and, that same day, told officials with the Safety Commission that some Simplicity Bassinets had been marketed under the Graco name and were identical to those models identified in the safety alert. Additionally, on August 28, 2008, Nancy Cowles, executive director of Chicago-based Kids in Danger, saw an Internet posting from a consumer that her Graco product looked exactly like the Simplicity model. Cowles then contacted the Safety Commission to inquire about the Graco models. According to Cowles, a spokesman for the agency brushed her off.

Neither Graco nor the Safety Commission issued an immediate recall for the Graco models. Graco indicated that "matters were complicated" by a change in ownership at Simplicity. An outfit called SFCA Inc. had purchased Simplicity's assets in May and had been "uncooperative" with the Safety Commission. Graco did issue a safety alert on its website today, identifying 17 Simplicity models that may have carried the Graco name. Consumers may return them retailers for refunds or store credit.

The Safety Commission did not respond to repeated requests for comments.

According to a recent story in the ABA Journal, employers are now spying on employees to make sure the workers are not abusing employment leave policies. The story explains that employers are becoming increasingly frustrated by what they consider to be abuses of leave granted to employees under the Family Medical Leave Act. More and more employers feel they need a new weapon - like surveillance - to combat malingerers who are abusing their leave under FMLA. And, in some instances, the surveillance has been successful. One employee on sick leave was caught bowling, while another was actually taped working at a second job. Lawyers for workers, on the other hand, are arguing that the surveillance amounts to harassment and will have a chilling effect on other workers who won't take necessary leave because they are afraid of surveillance. And, employee rights attorneys suggest that the surveillance may lead to independent causes of action, such as retaliation or harassment against the employer.