Reinneck v. Taco Bell Corp.
Annotate this Case
June 22, 1998
NO. 5-97-0365
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
VICKI R. REINNECK, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 95-L-865
)
TACO BELL CORPORATION, ) Honorable
) Michael J. O'Malley,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
Plaintiff, Vicki Reinneck, filed a complaint against her
former employer, Taco Bell Corporation (Taco Bell), seeking
compensatory and punitive damages, as well as damages for mental
anguish and for injury to her reputation. Plaintiff alleged that
she was terminated by defendant in retaliation for asserting her
rights to workers' compensation. After a bench trial, the trial
court found for plaintiff and assessed damages in the amount of
$370,000 in compensatory damages, $25,000 for mental anguish, and
$1,000,000 in punitive damages.
Defendant appeals, asserting that (1) there is no cause of
action for retaliatory discharge in Illinois for an exercise of
rights under another state's workers' compensation laws, (2) its
due process rights were violated because the court misinterpreted
the Illinois Workers' Compensation Act (820 ILCS 305/1 et seq.
(West 1994)), (3) the trial court erred in allowing the testimony
of former Taco Bell employees called by plaintiff, and (4) the
trial court erred by not allowing the testimony of a witness that
defendant wished to call in rebuttal. Defendant further asserts
that (5) the compensatory award should be overturned because it was
against the manifest weight of the evidence, (6) the award for
emotional distress should be reversed because plaintiff failed to
present any evidence on the issue, and (7) the trial court's
decision is against the manifest weight of the evidence. Finally,
defendant contends that the trial court erred in finding that (8)
plaintiff's testimony was credible and (9) plaintiff proved that
she was terminated in retaliation for exercising her rights to
compensation. We discuss the issues in the order they were raised
by defendant. For the following reasons, we affirm.
Defendant first contends that the trial court erred in
entering judgment for plaintiff because no cause of action for
retaliatory discharge exists under Illinois law for an exercise of
rights under another state's workers' compensation statute. We
believe that defendant's argument is misplaced. First, it was not
necessary for the trial court to find that plaintiff was fired
because she asserted her rights under another state's workers'
compensation laws. Plaintiff's complaint asserted that she was
fired in retaliation for asserting her rights under the Missouri
and Illinois Workers' Compensation Acts. It is undisputed that
Illinois recognizes a cause of action for the retaliatory discharge
of an employee who asserts his or her rights to workers'
compensation. See Kelsay v. Motorola, 74 Ill. 2d 172, 384 N.E.2d 353 (1978). The fact that a plaintiff has not filed a claim in
Illinois prior to her discharge does not preclude her from bringing
a retaliatory discharge cause of action; it is enough if she had
sought medical attention for her injuries and that her employer
discharged her for that assertion of her workers' compensation
rights. Bray v. Stan's Rental, Inc., 196 Ill. App. 3d 384, 387,
553 N.E.2d 791, 792-93 (1990). Before she was terminated,
plaintiff sought medical attention for her injuries, informed her
Illinois supervisors about her injuries, and informed the same
supervisors that she was hiring a lawyer to pursue her remedies.
Therefore, the pleadings support a retaliatory discharge cause of
action under Illinois law pursuant to her assertion of rights under
the Illinois Workers' Compensation Act only.
Additionally, we conclude that the trial court could have
properly found that it is against Illinois public policy to
terminate an employee for the assertion of another state's workers'
compensation rights. Defendant repeatedly argues that to allow
plaintiff to recover under the circumstances of this case is to
expand the tort of retaliatory discharge in Illinois. This
argument is unpersuasive. Illinois has long recognized the tort of
retaliatory discharge for exercising rights to workers'
compensation. See Kelsay v. Motorola, 74 Ill. 2d 172, 384 N.E.2d 353 (1978). It makes no logical difference, and is not an
expansion of the tort, to hold that an employer is subject to
liability for retaliating against a worker who has exercised his or
her rights under another state's workers' compensation law. The
tort is the same; there is no expansion.
We note that the Illinois Supreme Court has determined that
the tort of retaliatory discharge also protects employees who have
filed compensation claims against other employers. See Darnell v.
Impact Industries, Inc., 105 Ill. 2d 158, 473 N.E.2d 935 (1984).
We can find no logical reason not to protect employees who have
filed compensation claims against the same employer in another
state.
Defendant next argues that its right of due process was
violated because the court misinterpreted the Illinois Workers'
Compensation Act to include a cause of action for retaliatory
discharge pursuant to another state's workers' compensation law.
In light of our discussion and ruling on the previous point, we
need not further discuss this issue.
Next, defendant asserts that the trial court erred in
admitting into evidence the testimony of former employees of
defendant. Defendant argues that the testimony should not have
been allowed because evidence of prior wrongs is not admissible to
show conformity therewith on the occasion at issue. In its order,
the court stated that it did not consider this testimony for the
purpose of assessing compensatory damages but did consider it in
assessing punitive damages. We conclude that the trial court would
have been correct to admit the evidence in assessing both types of
damages depending upon the purpose for which the evidence was used.
The general rule is that evidence of prior similar tortious or
wrongful conduct is not relevant on the question of the conduct on
the occasion in issue unless the evidence is offered to show habit,
state of mind, knowledge, motive, or intent. Joseph Taylor Coal
Co. v. Dawes, 220 Ill. 145, 77 N.E. 131 (1906); Wernowsky v.
Economy Fire & Casualty Co., 106 Ill. 2d 49, 477 N.E.2d 231 (1985).
The ultimate issue to be decided in a retaliatory discharge action
is the employer's motive in discharging the employee. Hartlein v.
Illinois Power Co., 151 Ill. 2d 142, 163, 601 N.E.2d 720, 730
(1992). Evidence of prior discriminatory conduct or of statements
condoning or advocating discrimination is admissible to show
motive. Mack v. First Security Bank of Chicago, 158 Ill. App. 3d
497, 511 N.E.2d 714 (1987).
The testimony of former Taco Bell employees who were fired for
filing claims or who overheard management personnel discussing
firing employees who filed compensation claims is directly relevant
to one of the ultimate issues in this case--motive. Therefore, the
testimony was properly admitted.
Defendant argues that Knecht v. Radiac Abrasives, Inc., 219
Ill. App. 3d 979, 579 N.E.2d 1248 (1991), prohibits the
introduction of the other employees' testimony. In Knecht, the
defendant sought to introduce testimony to show that it treated
fairly other employees who filed workers' compensation claims. The
court pointed out the general rule that evidence of conduct on
other occasions is not relevant on the question of conduct on the
occasion in issue unless the evidence is offered to show habit,
routine business practice, state of mind, knowledge, or intent.
Knecht, 219 Ill. App. 3d at 986, 579 N.E.2d at 1252. The court
ruled that the evidence of the defendant's treatment of other
workers was not proper evidence of habit or routine business
practice and that it could not be construed as evidence of state of
mind, intent, or knowledge. Therefore, the court held, the trial
court was correct in not allowing the testimony. Knecht, 219 Ill.
App. 3d at 987-88, 579 N.E.2d at 1254.
In the case at bar, the testimony of the former employees was
offered to show defendant's motive for terminating an employee who
files, or might file, a compensation claim. The motive established
through this testimony supported plaintiff's claim that defendant's
reasons for firing her were pretextual. We conclude that the trial
court did not abuse its discretion in considering this evidence.
We point out that our supreme court has recognized that other-
crimes evidence, as well as evidence of wrongs or acts which are
not criminal, may be relevant to prove motive in criminal cases.
See, e.g., People v. Enis, 163 Ill. 2d 367, 645 N.E.2d 856 (1994);
People v. Stewart, 105 Ill. 2d 22, 473 N.E.2d 840 (1984). Such
evidence is allowed in criminal cases despite the fear that such
evidence will overpersuade a jury to convict a person only because
it thinks he or she is a bad person and deserves punishment. See
People v. Robinson, 167 Ill. 2d 53, 62, 656 N.E.2d 1090, 1094
(1995). We find that our supreme court's policy of allowing the
introduction of other wrongs to show motive where a person's
liberty is at stake supports our decision in this case.
Defendant next argues that the court erred in barring a
witness that it wished to call to rebut the testimony of the former
employees called by plaintiff. Plaintiff contends that the witness
was not properly disclosed.
The determination of whether to bar a witness who has not been
properly disclosed is within the sound discretion of the trial
court. See Palmer v. Minor, 211 Ill. App. 3d 1083, 570 N.E.2d 774
(1991). Defendant claims that the witness should have been no
surprise to a diligent plaintiff's counsel because her name was on
a list of hundreds of names of St. Louis area employees terminated
in the last five years. Listing hundreds of names without
indicating whether any will testify is not a sufficient reply to a
request for disclosure of witnesses. The trial court did not abuse
its discretion in barring the witness.
Defendant next argues that the trial court erred in awarding
compensatory damages to plaintiff. Damages awarded by a trial
court sitting without a jury will not be set aside unless they are
manifestly erroneous. Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 543, 662 N.E.2d 1248, 1256 (1996).
Defendant also contends that the compensatory award of
$370,000 is not supported by the record. Plaintiff presented
evidence that she made a salary of $24,400 a year, plus raises and
benefits, prior to her termination by Taco Bell. The record
reflects that she now makes from $8,750 to $10,400 a year, for a
difference of $14,000 to $15,650 a year, not including raises and
benefits. Plaintiff was 44 at the time of trial; therefore, she
had 21 years of employment remaining. Using both sets of numbers,
in 21 years, plaintiff's lost future wages will be between $294,100
and $328,600.
Although it is well-established that an award of future
damages must be reduced to its present-day cash value (Stringham v.
United Parcel Service, Inc., 181 Ill. App. 3d 312, 317, 536 N.E.2d 1292, 1295 (1989)), neither side presented evidence of the
appropriate discount rate at trial, and the trial court's order
does not state whether its award takes into account any
discounting.
Under similar circumstances, in Heldenbrand v. Roadmaster
Corp., 277 Ill. App. 3d 664, 660 N.E.2d 1354 (1996), this court
reduced the trial court's award of $200,000 compensatory damages to
$167,000, an amount which was clearly supported by the record.
However, in that case, the plaintiff only proved he would have
earned $167,000 had he not been terminated, and he did not provide
any evidence of raises or benefits.
In this case, plaintiff proved that future wage loss could
have amounted to as much as $328,600. Plaintiff was also off work
for three years before trial. During that time she earned between
$5,000 and $6,000 at various jobs. At Taco Bell plaintiff would
have earned $73,200, making her past lost wages approximately
$67,200 to $68,200.
The trial court could, therefore, have set plaintiff's
compensatory damages as high as $396,800 without considering lost
benefits such as health insurance, stock options, and pension.
Plaintiff testified that her stock options amounted to 10% of her
salary per year, that she had life, health, dental, and vision
insurance coverage, and that she would have been eligible for
$55,000 in pension benefits after five years with Taco Bell.
Because the trial court set damages lower than an amount
clearly supported by the record, and because plaintiff presented
evidence of raises and benefits, we cannot hold that the trial
court's ruling is manifestly erroneous.
Defendant next argues that the award of future damages was
erroneous because plaintiff failed to mitigate her damages. A
wrongfully discharged employee must attempt to mitigate her damages
by seeking similar employment. Arneson v. Board of Trustees,
McKendree College, 210 Ill. App. 3d 844, 851-52, 569 N.E.2d 252,
257 (1991). Plaintiff introduced into evidence a lengthy list of
employers whom she contacted in her job search. Defendant was able
to present the testimony of employers from plaintiff's list that
potentially refuted her claim that she had attempted to procure
employment with their restaurants.
The trial court, as the trier of fact, is in a better position
than this court to determine the credibility of witnesses. In re
Marriage of Eltrevoog, 92 Ill. 2d 66, 71, 440 N.E.2d 840, 842
(1982). The trial court apparently determined that plaintiff did,
in fact, make a good-faith search for employment but possibly made
some mistakes in retrospectively recording her list. We cannot say
that the trial court abused its discretion in that determination.
Defendant points to the testimony of Tim Kaver for the
proposition that plaintiff could have acquired similar employment
quickly and easily. Kaver, a job rehabilitation expert, testified
that he developed 23 potential job leads for plaintiff and that she
should have been able to find gainful employment in the restaurant
industry in 30 to 90 days. Defendant refers to this evidence as
unrefuted.
On cross-examination, however, Kaver testified that he did not
reveal to the potential employers that plaintiff had been fired
from her job at Taco Bell. Kaver suggested that plaintiff not
volunteer at her interviews the true reason that she was fired.
Kaver also acknowledged that if plaintiff were truthful with an
employer, it would probably make it less likely for her to be
employed. We cannot characterize this evidence as "unrefuted" and
do not believe that the trial court abused its discretion in its
consideration of it.
We also do not believe that plaintiff's wage-loss evidence was
speculative or uncertain. Plaintiff introduced ample evidence of
her attempts and failures at finding comparable work up to the time
of trial, and she testified about the jobs that she took to make
ends meet. The trial court's award was limited to damages that
were reasonably certain, and the award was not manifestly
erroneous.
Defendant next argues that the emotional distress award should
be reversed because the evidence was insufficient as a matter of
law to support such an award. Defendant contends that plaintiff's
testimony was so vague that it does not support an award of
emotional distress.
Plaintiff testified that it "didn't feel very well" to be
fired, that she had to give up property on which she and her
husband were going to build a house, that she felt like she had
wasted 14 years of her life, and that she had lost all of her
credibility. Defendant claims that the evidence of plaintiff's
emotional distress was extremely limited and did not warrant the
imposition of $25,000 in damages. The trial court is in the best
position to evaluate such testimony, and its determination is
entitled to deference on review. Kalata v. Anheuser-Busch Cos.,
144 Ill. 2d 425, 433, 581 N.E.2d 656, 660 (1991); Haudrich, 169 Ill. 2d at 543, 622 N.E.2d at 1256. The fact that a plaintiff
testifies only briefly about an injury does not necessarily lessen
the severity of the injury. For example, an amputee who testifies,
"My leg is gone and the fact that it is gone bothers me", may have
spoken volumes in a single sentence. Considering plaintiff's
testimony with the facts of the case, we believe that the trial
court could determine that plaintiff experienced emotional
distress. The trial court's award is not manifestly erroneous.
Defendant next asserts that the trial court's ruling is
against the manifest weight of the evidence because plaintiff was
repeatedly shown to be untruthful and the defense witnesses proved
to be credible and damning to plaintiff's case. Because the trial
court is in a much better position to determine the credibility of
the witnesses and the weight to be afforded conflicting testimony,
the appellate court will not reconsider the evidence or reassess
the witnesses' credibility or demeanor and will not substitute its
judgment on such matters unless the trial court's findings are
against the manifest weight of the evidence. Knight's Prairie
Hunting Club, Inc. v. Holmes, 263 Ill. App. 3d 455, 461, 636 N.E.2d 29, 33 (1994). The trial court's order shows that it was not as
satisfied with the credibility of the defense witnesses as defense
counsel was. We note that the trial court was required to
determine the credibility of almost every witness whose testimony
was crucial to the outcome of this case. It is not clear from the
evidence in the record before us that the trial court's
determination is manifestly erroneous.
Finally, defendant argues that plaintiff failed to prove that
she was terminated for exercising her rights to workers'
compensation, because defendant had a valid, nonpretextual reason
for her termination.
A retaliatory discharge claim requires a showing that the
employee has been discharged in retaliation for her activities and
that her discharge was in violation of a clear mandate of public
policy. Palmateer v. International Harvester Co., 85 Ill. 2d 124,
134, 421 N.E.2d 876, 881 (1981). To recover, a plaintiff must
affirmatively show that she was discharged in retaliation for the
exercise of her protected right. Dixon Distributing Co. v. Hanover
Insurance Co., 244 Ill. App. 3d 837, 845, 612 N.E.2d 846, 852
(1993), aff'd, 161 Ill. 2d 433, 641 N.E.2d 395 (1994).
This court will not substitute its judgment for that of a
trial judge sitting as the trier of fact unless that judgment is
against the manifest weight of the evidence. Schroeder v. Meier-
Templeton Associates, Inc., 130 Ill. App. 3d 554, 474 N.E.2d 744
(1984). A decision is against the manifest weight of the evidence
where, upon a review of all of the evidence in the light most
favorable to the party prevailing at trial, the opposite conclusion
is clearly apparent. Rainey v. City of Salem, 209 Ill. App. 3d
898, 568 N.E.2d 463 (1991).
We believe that the evidence supports a finding that
plaintiff's termination was in retaliation for filing and/or over
concern that she would file more compensation claims, a protected
right under Illinois law. In view of the evidence before us, the
trial court could have found that: plaintiff received above-
average evaluations at all times except after filing compensation
claims or taking leave after on-the-job injuries; a supervisor
could provide no documentary evidence of disciplinary action
against or counseling sessions with plaintiff even though that
supervisor was a stickler for details; plaintiff returned to work
for a time and retained her title of assistant manager, but she was
not given any keys, the alarm code, the combination to the safe, or
her hepatitis shots; and Taco Bell used plaintiff's absenteeism due
to child care difficulties as a pretext for firing her in
retaliation for filing a workers' compensation claim in Missouri or
over concern that she might file a claim in Illinois.
The trial court's holding that plaintiff was terminated in
retaliation for exercising her rights to compensation is not
against the manifest weight of the evidence. We affirm.
Affirmed.
MAAG, J., and GOLDENHERSH, J., concur. NO. 5-97-0365
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
VICKI R. REINNECK, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 95-L-865
)
TACO BELL CORPORATION, ) Honorable
) Michael J. O'Malley,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: June 22, 1998
___________________________________________________________________________
Justices: Honorable Charles W. Chapman, J.
Honorable Gordon E. Maag, J., and
Honorable Richard P. Goldenhersh, J.,
Concur
___________________________________________________________________________
Attorneys John P. Lavey, Scott C. Trout, Mayer S. Klein, Newman,
for Goldfarb, Freyman & Klein, P.C., 7777 Bonhomme Avenue, 24th
Appellant Floor, Clayton, MO 63105; Dennis E. Rose, Donovan, Rose,
Nester, Szewczyk, & Joley, P.C., 8 East Washington St.,
Belleville, IL 62220-2190
___________________________________________________________________________
Attorneys Harriet Homsher Hamilton, Joseph A. Bartholomew, Cook,
for Shevlin, Ysursa, Brauer, & Bartholomew, Ltd., 12 West
Appellee Lincoln Street, Belleville, IL 62220
___________________________________________________________________________
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