On September 2, 2016, the Illinois Appellate Court, First District, affirmed an order of summary judgment in a state court lawsuit in which the plaintiff alleged that his employment was terminated in retaliation for his workers’ compensation claim and because of a work-related disability. Vulpitta v. Walsh Construction Company, et al., 2016 IL App (1st) 152203 (9/2/2016). The plaintiff worked for the defendant as a carpenter and carpenter foreman for approximately 12 years until he was laid off. The defendant contended that it laid off the plaintiff due to a work shortage, while the plaintiff alleged that he was terminated unlawfully in retaliation for exercising his rights under the Illinois Workers’ Compensation Act and on account of his work-related disability. The Illinois Human Rights Act makes it unlawful for an employer to discriminate against an employee because of his or her disability. There is also an Illinois common law tort claim for retaliatory discharge, which is an exception to the general rule in Illinois of employment at-will. To state a claim for workers’ compensation retaliatory discharge, a plaintiff must establish: (1) he was an employee of the defendant at or before the time of the injury; (2) he exercised a right under the Workers’ Compensation Act; and (3) his discharge was causally related to the exercise of his rights. The element of causation cannot be met if the employer establishes a valid, nonpretextual basis for the discharge. The ultimate issue is the employer’s motive in discharging the employee.
The employer moved for summary judgment on the grounds that the employee failed to establish causation and that the employer had a valid nonpretextual reason for terminating his employment. The appellate court held that the trial court properly granted the defendant’s motion for summary judgment because the plaintiff failed to establish a causal connection between the exercise of his rights under the Workers’ Compensation Act and his discharge. While the mere passage of time between protected activity and discharge will not per se insulate an employer from liability for a retaliatory discharge claim, the undisputed facts that the plaintiff continued to work on at least nine different construction projects after he filed his workers’ compensation claim and the employer allowed his work restrictions supported the trial court’s finding that the termination was not retaliatory. The plaintiff failed to establish a retaliatory motive for his termination and, therefore, failed to satisfy the element of causation.