Jared Beatty v. Olin Corporation , 693 F.3d 750 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2853
JARED B EATTY,
Plaintiff-Appellant,
v.
O LIN C ORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-cv-795-JPG-SCW—J. Phil Gilbert, Judge.
A RGUED F EBRUARY 13, 2012—D ECIDED S EPTEMBER 6, 2012
Before P OSNER, W OOD , and S YKES, Circuit Judges.
S YKES, Circuit Judge. Jared Beatty injured his back on
the job at Olin Corporation’s manufacturing plant in
East Alton, Illinois. At the direction of Olin’s medical de-
partment, he was evaluated by his physician, who in-
structed him to remain off of work for a week. He
passed that doctor’s note on to the medical department.
But with the exception of two days of light duty, he
did not report for work for the next six weeks. He eventu-
ally got a retroactive medical excuse from his doctor,
2 No. 11-2853
but Olin’s medical department sought an independent
medical examination, anticipating the potential for a
workers’ compensation claim.
In the meantime, a clerk in Beatty’s division of the
plant told Olin’s labor-relations manager that Beatty had
not been at work for several weeks and had not called in
to report his absence. Olin’s attendance-control policy
requires employees to call in daily if they cannot come
to work, and failure to call in for three workdays in a
row is grounds for termination. Based on Beatty’s non-
compliance with the company’s attendance-control
policy, the labor-relations manager terminated his em-
ployment.
Beatty later filed a workers’ compensation claim re-
garding his injury, which the parties eventually settled.
He then sued Olin for retaliatory discharge under Illinois
law, claiming that he was terminated in response to
his anticipated exercise of his workers’ compensation
rights. The district court granted summary judgment
for Olin.
We affirm. This case presents a straightforward
question of causation: Did Beatty’s possible pursuit of a
workers’ compensation claim prompt Olin to fire him?
There is no evidence that it did. The labor-relations man-
ager who made the decision was entirely unaware of
Beatty’s status vis-á-vis Olin’s medical department. All
he knew was what the plant clerk told him: Beatty
had not called in for several weeks to report his absence.
Based on that violation of Olin’s attendance policies, the
labor-relations manager fired him. On these facts, there
was no retaliatory discharge.
No. 11-2853 3
I. Background
Beatty began working as an adjustor on the floor of
Olin’s manufacturing plant in East Alton in 2004. On
September 28, 2007, he injured his side and lower back
while moving a tub of shells. His foreman sent him to
Olin’s medical department, which in turn referred him
to his personal physician. Beatty did so on October 1.
The doctor gave him a no-work note until their next
appointment, which Beatty sent to Olin’s medical de-
partment. The doctor’s note, however, was only good
through October 5, and Beatty did not provide Olin
with a new one even after he saw his doctor again on
October 8. A week later Olin’s medical department sent
Beatty a letter explaining that it needed documentation
regarding his injury and instructing him to report for
a medical evaluation at Olin on October 18. Beatty did
not show up for the appointment, show up for work, or
respond to the letter. On October 23 Bill Kern, Olin’s
Assistant Director for Labor Relations, sent Beatty a letter
stating that he missed the appointment, that he was absent
without approval, and that he needed to report to work.
Two days later Beatty again saw his personal physician,
who gave him a new off-work note extending back to
September 27 and forward to October 29. The fol-
lowing week Beatty reported for light duty on two
days—October 31 and November 1—but complained of
shoulder pain. He was once again referred to his own
doctor, who wrote another off-work note. Beatty gave
the new doctor’s note to Olin’s medical department on
November 5. At this point the medical department
4 No. 11-2853
sought an independent medical examination (“IME”)
from an impartial physician. The IME took place
on November 9, and the report reached the medical de-
partment on November 19.
On that day Connie DeProw, a nurse and supervisor
of disability claims at Olin, emailed others in the medical
department stating that Beatty was “off work, not on
approved leave,” and that she had “discussed termination
with our labor relations group.” She also acknowledged
receipt and review of the IME report, and speculated
that Beatty “will be getting an attorney soon.”
Sporadically throughout these two months, Beatty
called in or stopped in at Olin, but the record is
unclear whether he had contact with his plant division
or just the medical department. At some unspecified
point, he stopped checking in. Beatty claims that an
unidentified woman in Olin’s bureaucracy told him
that he no longer needed to call in his absences.
On November 13 a clerk in Beatty’s plant division told
Bill Moore, Olin’s Manager of Labor Relations, that
Beatty had been absent and had not called in “for a
couple of weeks.” Olin’s attendance policy, plant rules,
and collective-bargaining agreement required em-
ployees to report their absences daily unless they had
prior written approval for an absence; failure to report
for three consecutive working days was grounds for
termination. That same day, and in response to the infor-
mation provided by the plant clerk, Moore ordered
Beatty’s employment terminated based on his unexcused
absences from November 7 to 13. There is no evidence
No. 11-2853 5
that Moore discussed Beatty’s status with the medical
department, DeProw, Kern, or anyone else who knew
of his injury.
Beatty subsequently sought and received a workers’
compensation settlement from Olin. 1 He then brought
this suit for retaliatory discharge under Illinois law,
invoking the district court’s diversity jurisdiction. See
28 U.S.C. § 1332. Olin moved for summary judgment
based on, among other things, the lack of evidence of a
causal connection between Beatty’s discharge and his
exercise of workers’ compensation rights. The district
court granted the motion and entered judgment for
Olin. Beatty appealed.
II. Discussion
We review the district court’s grant of summary judg-
ment de novo, construing the evidence and drawing
reasonable inferences in favor of Beatty, the nonmoving
party. Coca-Cola Enters., Inc. v. ATS Enters., Inc., 670 F.3d
771, 774 (7th Cir. 2012). Summary judgment is appro-
priate if the evidence demonstrates that there are no
genuine issues of material fact and Olin is entitled to
judgment as a matter of law. F ED. R. C IV. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Coca-Cola
Enters., 670 F.3d at 774.
1
In the workers’ compensation settlement, Beatty and his
attorney acknowledged that he was terminated “for unrelated
reasons,” presumably the attendance-policy violation.
6 No. 11-2853
The Illinois Workers’ Compensation Act provides a
comprehensive scheme to compensate employees
injured on the job. See 820 ILL. C OMP. S TAT. 305. The
Illinois Supreme Court has recognized a common-law
cause of action for retaliatory discharge where an em-
ployee is terminated because of his actual or anticipated
exercise of workers’ compensation rights. See Kelsay v.
Motorola, Inc., 384 N.E.2d 353, 357 (Ill. 1978). The state
supreme court has emphasized, however, that the
retaliatory-discharge cause of action is a “narrow” and
“limited” exception to the at-will employment
doctrine, one that the court is disinclined to expand.
Zimmerman v. Buchheit of Sparta, Inc., 645 N.E.2d 877,
881, 884-85 (Ill. 1994); see also Hartlein v. Ill. Power Co.,
601 N.E.2d 720, 728 (Ill. 1992) (“Despite the revolu-
tionizing effect of Kelsay, the common law doctrine that
an employer may discharge an employee-at-will for
any reason or for no reason remains the law in Illinois. . . .
Kelsay only excepts discharges which violate a clearly
mandated public policy.”).
To prevail on a claim of retaliatory discharge, the plain-
tiff has the burden of proving three elements: “(1) that
he was an employee before the injury; (2) that he
exercised a right granted by the Workers’ Compensa-
tion Act; and (3) that he was discharged and that the
discharge was causally related to his filing a claim
under the Workers’ Compensation Act.” Clemons v. Mech.
Devices Co., 704 N.E.2d 403, 406 (Ill. 1998) (internal
citations omitted); see also Gordon v. FedEx Freight, Inc., 674
F.3d 769, 773 (7th Cir. 2012). “Concerning the element
No. 11-2853 7
of causation, the ultimate issue to be decided is the em-
ployer’s motive in discharging the employee.” Clemons,
704 N.E.2d at 406. It is undisputed that Beatty was an
employee of Olin at the time of his back injury, that
he exercised his workers’ compensation rights, and
that he was discharged. The only disputed element
is causation.
The district court held, and we agree, that no evidence
supports Beatty’s claim that he was fired because of
his assertion or anticipated assertion of workers’ compen-
sation rights. The termination decision was made by
Moore, who as Olin’s manager of labor relations was
responsible for making these determinations. Moore
received information from a plant clerk that Beatty had not
reported for work or called in his absence for several
weeks. Olin’s attendance policy required employees to
call in their absences daily and clearly provided that
an employee who failed to report or call in for three
consecutive days was subject to termination. Applying
that policy to the information he had from the clerk,
Moore ordered Beatty’s termination.
No witness says that Moore talked with the
medical department, DeProw, Kern, or anyone else
who knew of Beatty’s injury; nor is there any other evi-
dence tending to suggest that Moore was aware of
Beatty’s medical status when he issued the termination
order. Cf. Marin v. Am. Meat Packing Co., 562 N.E.2d
282, 286 (Ill. App. Ct. 1990) (“Evidence that those responsi-
ble for plaintiff’s termination knew he intended to file
a worker’s compensation claim is ‘essential’ to a retali-
8 No. 11-2853
atory discharge action.”). To the contrary, on the undis-
puted record evidence, Moore fired Beatty because he
failed to show up at work or call in, as required by
plant rules—not because of his injury, the gaps in
his doctor’s notes, or the possibility that he might file
a workers’ compensation claim.
Faced with these facts, Beatty attempts several different
routes to try to win reversal. All are dead ends. First, he
claims that he received authorization from someone
at Olin to stop calling in. But he is unable to say who,
what position that person held, or when the con-
versation took place. In any event, this line of argument
ignores the central legal question in a retaliatory-
discharge case. Accepting Beatty’s factual claim as
true—that an unidentified Olin employee told him he
no longer needed to call in his absences—would tend to
prove only that Moore fired him based on incorrect or
incomplete information, not that Moore retaliated
against him for exercising his workers’ compensation
rights.
Second, and in a similar vein, Beatty faults
Moore for discharging him for failing to call in from
November 7 to 13 when he was simply following the
instructions he received from Olin’s medical department
to attend an IME. True enough, the evidence does
point to an obvious failure of communication. But the
retaliatory-discharge cause of action is narrow and
requires evidence of retaliatory motive, not just sloppy
personnel practices. The critical fact here is that Moore
didn’t know about Beatty’s injury or medical status
No. 11-2853 9
when he issued the termination order. That Olin’s right
hand didn’t know what its left hand was doing is not
actionable as a retaliatory discharge. See Horton v. Miller
Chem. Co., 776 F.2d 1351, 1359 (7th Cir. 1985) (applying
Illinois law) (explaining that a decision to terminate
based on misleading or incomplete information does not
amount to retaliation).
Third, Beatty insists that Moore either knew or
should have known about his medical status and
possible workers’ compensation claim, and that a reason-
able jury could reject Moore’s claim of ignorance as
“dishonest.” But Beatty offers no evidence to support
this assertion. A properly supported motion for sum-
mary judgment cannot be defeated by simply arguing
that a jury might not believe a witness’s testimony.
Stated differently, argument is insufficient to avoid sum-
mary judgment; the nonmoving party needs to come
forward with evidence. Outlaw v. Newkirk, 259 F.3d 833,
839 n.2 (7th Cir. 2001); Scherer v. Rockwell Int’l Corp.,
975 F.2d 356, 361 (7th Cir. 1992).
Next, Beatty argues that Moore was executing an
“illegal” retaliatory policy, as was the case in Siekierka
v. United Steel Deck, Inc., 868 N.E.2d 374 (Ill. App. Ct.
2007). But Siekierka is easily distinguishable. There, the
Illinois Appellate Court held that an ostensibly neutral
employment policy that had the effect of penalizing
employees who file workers’ compensation claims may
in fact be retaliatory. Id. at 380-81. In Siekierka the
plaintiff suffered a work injury necessitating surgery,
but his employer’s workers’ compensation policy
10 No. 11-2853
required him to see an insurer-provided doctor before
proceeding. The insurer’s doctor adopted a “wait and
see” approach before considering surgery, and the
extra four weeks of waiting placed the employee
beyond the duration of his authorized leave. The
employer then terminated the employee for failing to
return to work. The appellate court noted that under
the employer’s policy, the plaintiff “was faced with the
option of pursuing his worker’s compensation right
to have the surgery or attempting to return to
work without it.” Id. at 381.
Here, in contrast, Beatty was permitted to miss work
based on his doctor’s notes (though some of the time off
was excused only retroactively), but he was not excused
from Olin’s policy requiring employees to call in their
absences. Unlike in Siekierka, Olin’s call-in policy was
completely unrelated to the company’s policy regarding
workers’ compensation benefits; complying with the
attendance policy did not put Beatty in any sort of a
workers’ compensation catch-22, as was the case in
Siekierka. Nothing in the record links Moore’s enforce-
ment of Olin’s call-in policy to a retaliatory purpose.
Beatty argues that DeProw’s November 19 email pro-
vides the link. In it DeProw refers to Beatty’s absence
and the results of the IME report, and also says that
she “discussed termination with our labor relations
group” and states her belief that Beatty “will be getting
an attorney.” But this email was sent several days after
Moore terminated Beatty. Moore is not a listed recipient,
and there is no evidence that DeProw or anyone else
No. 11-2853 11
with knowledge of Beatty’s injury talked to Moore
about Beatty’s case. In short, no evidence suggests that
Moore was privy to any of DeProw’s comments before
he made the termination decision. If there were, we
would have a different case. Cf. Ridings v. Riverside Med.
Ctr., 537 F.3d 755, 774 (7th Cir. 2008) (applying Illinois
law) (holding that if emails exchanged between decision-
makers and other employees evidenced retaliation, then
summary judgment was inappropriate).
Finally, Beatty relies on two decisions of the Illinois
Appellate Court concerning conflicting medical reports
in workers’ compensation cases. Neither applies to this
case. The first, Grabs v. Safeway, Inc., 917 N.E.2d 122 (Ill.
App. Ct. 2009), involved a dispute between an em-
ployer and two of its employees over whether the em-
ployees were fit to return to work. The employees’
treating physicians recommended that they remain off
work, while an independent examiner said they should
return. The employer followed the IME’s recommenda-
tion and discharged the employees when they failed to
report for work. Id. at 125-26. The court held that because
the employees had workers’ compensation petitions
pending at the time of their discharge, only the Illinois
Workers’ Compensation Commission could resolve the
dispute between doctors over the employees’ fitness to
return to work. Id. at 130. Here, in contrast, Beatty’s
IME was completely unrelated to Moore’s termination
decision. In fact, the IME report did not even reach Olin’s
medical department until several days after Beatty’s
termination. Grabs does not apply.
12 No. 11-2853
The second case, Hollowell v. Wilder Corp. of Delaware, 743
N.E.2d 707 (Ill. App. Ct. 2001), is similarly inapposite. In
Hollowell the employee injured his back at work, com-
menced treatment, and filed for workers’ compensation
benefits. Id. at 709-10. Although his personal physician
instructed him to remain off of work, his supervisor
suspected that he was illicitly avoiding returning to
work. Relying on the results of a disputed IME, the em-
ployer demanded that the employee return to work
or face discipline. When the employee refused, his em-
ployment was terminated. Id. at 710. As in Grabs, the
Hollowell court disapproved of the employer’s reliance
on the disputed IME to discharge the employee. The
court held that “it violates the purpose of the Act if
an employer can dismiss an employee on the grounds
of being lazy and not working when said employee’s
personal physician has ordered the employee not to
return to work.” Id. at 711-12.
Hollowell, like Grabs, is irrelevant here. Moore did not rely
on a disputed IME in deciding to terminate Beatty’s
employment; indeed, he was entirely unaware of
Beatty’s medical status. The undisputed evidence thus
points in only one direction: Moore fired Beatty based on
his noncompliance with Olin’s attendance policy, not in
retaliation for his anticipated exercise of his workers’
compensation rights. The district court properly granted
summary judgment for Olin.
A FFIRMED.
9-6-12