Court Rules FedEx Discharged Worker in Retaliation for Not Providing Notice

Tuesday, September 30, 2014 | 0

We feel sure this ruling will be appealed to the 7th Circuit Court of Appeals. In our view, it won’t stop at the district court level and we will have to await the appellate outcome to be sure where it will all go. However, we are certain this ruling “endangers” or calls into question the legal viability of same-shift accident reporting rules or a requirement that a worker first advise the employer before obtaining work-related medical attention.
 
As long-time court watchers and with respect to this august and veteran federal judge, we wholly disagree with the approach used. FedEx did not refuse to have this worker medical care. We feel it is safe to assume the medical care obtained under the Illinois Workers' Compensation Act was paid for by the employer. Having read the decision, we don’t feel the employee was fired for needing and getting work-related medical attention. The termination was for not reporting the medical care until after it happened. There is no provision in the Illinois WC Act that makes it “illegal” for an employer to ask employees to timely report the need for medical care. In fact, there are hundreds of safety and personnel reasons supporting the need for such reporting.
 
As a rapid example, take the recent controversy about the employee who appears to have been suffering from severe psychiatric concerns. The damage done by him at the Federal Aviation Administration radar facility in Aurora was so extensive the center might not be operational for several days. Thousands of flights were cancelled and the cost will be well into the millions. The suspect, who set several fires with rags and gasoline in the basement, managed to shut down all radar and communications systems in the facility. Would it be a bad thing for his employer to require him to report he was getting work-related psychiatric or other medical care?
 
In Stevenson v. FedEx, No. 13 C 138, published 9/24/14, there was no dispute about the basic facts. Defendant FedEx employed plaintiff Stevenson as a package handler. As of January 2011, Stevenson was subject to a FedEx company policy that required immediate reporting of workplace injuries whether they required only minor first aid or medical treatment. In addition, FedEx policy required employees wishing to seek medical treatment for a workplace injury first attempt to provide advance notice to management via a free 24-hour phone line or other means. Under this company policy, failure to notify management before seeking work-related medical care could subject the employee to immediate termination.

On Jan. 6, 2011, Stevenson reported to supervisors that he was suffering from a sore back. FedEx generated a First Aid/Injury Report and placed Stevenson on light duty to accommodate his condition. He did not request or seek medical treatment at that time. After working light duty for five days, Plaintiff Stevenson sought medical treatment for his back without first advising FedEx. The physician assistant who examined him provided a “certificate to return to work,” which cleared Stevenson to return to work. Stevenson began his next shift, as previously scheduled, at 10:30 p.m. on Jan. 13 and worked until about 7 a.m. and worked light duty as FedEx had not yet returned him to regular duty. At the end of his shift, Stevenson presented the note from the physician assistant, thereby notifying FedEx he had already sought and received medical care for the Jan. 6 incident. Citing the company policy that required advance notice before seeking medical treatment for a prior workplace injury, FedEx terminated Stevenson’s employment.
 
Stevenson then brought a retaliatory discharge action. FedEx removed the action to the federal district court. The federal court noted under Illinois law, it is unlawful for an employer to terminate an employee in retaliation for exercising a right guaranteed by the Illinois Workers’ Compensation Act. For claims alleging retaliatory discharge for the exercise of Workers' Compensation Act rights, the employee must prove:

• Status as an employee of defendant;
• Exercise of a right granted by the Illinois Workers' Compensation Act, and
• Causal relationship between discharge and the exercise of that right.

 The federal court indicated the parties agreed Stevenson was a FedEx employee and that a causal relationship exists between Stevenson’s actions and Stevenson’s termination. They simply disagree about whether all of his actions were protected. FedEx concedes the Illinois Workers' Compensation Act protects Stevenson’s actions in seeking medical care from his own provider and in later filing a Workers’ Compensation claim, but contends that the sole cause of his termination was not the fact he sought medical treatment but rather his failure to notify the company before he did so. The federal judge reviewed the motions of both parties and noted Plaintiff Stevenson did not dispute the cause of his termination: “Plaintiff admits he was terminated on Jan. 17, 2011, for failing to notify his supervisors or management prior to seeking medical attention for a work injury.”
 
The federal judge also noted her feelings that FedEx repeatedly mischaracterized plaintiff’s argument as asserting his termination was based solely on the fact he sought medical treatment, ignoring plaintiff’s repeated statements “Defendant unlawfully . . . interfered with plaintiff’s rights by requiring him to notify his supervisor prior to seeking medical attention for a work injury.” The Court felt the remaining question, then, was whether the Illinois Workers' Compensation Act grants employees the right to seek medical care for a prior workplace injury without first notifying a supervisor.
 
Stevenson’s argument rests on the fact the Illinois Workers' Compensation Act prohibits employers from interfering with an employee’s attempt to exercise rights provided in the statute. The Illinois Workers’ Compensation Act provides, in relevant
part:
 
(h) It 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 by this Act . . . . It shall be unlawful for any employer . . . to discharge . . . an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.
 
Because one of the rights guaranteed by the act is the right to seek medical treatment, Plaintiff Stevenson argued the act therefore protects the right of employees to secure one’s own medical provider without interference “in any manner whatsoever.” In its briefs, FedEx did not dispute the legal premise of Stevenson’s argument the Illinois Workers' Compensation Act provides the right to seek medical care without interference. Rather, FedEx asserted its advance notification requirement does not interfere with the right of an injured worker to receive medical care and was justified by legitimate corporate and safety concerns.

FedEx raised several examples of workplace policies that have been recognized by the courts as valid defenses to retaliatory discharge claims, but those policies are easily distinguished from the policy challenged here; none involved action by an employer that imposed any precondition on an employee’s exercise of rights provided by the Illinois Workers' Compensation Act:

• In McCoy v. Maytag Corp., 495 F.3d 515 (7th Cir. 2007), the employer terminated an employee who had failed to submit post-treatment status reports during a doctor-ordered leave of absence.
• In Casanova v. American Airlines, Inc., 616 F.3d 695 (7th Cir. 2010), the employer was permitted to engage in post-treatment investigation and surveillance to determine whether an employee had fraudulently claimed a false injury and could terminate the employee for lying and refusing to cooperate with the investigation.
• Goode v. American Airlines, Inc., 741 F. Supp. 2d 877, 893–94 (N.D. Ill. 2010), endorsing the permissibility of a zero-tolerance policy against dishonesty in filing workers’ compensation claims.

In each of these cases cited above, this federal court felt violations of company policy occurred after the employees had already exercised some of their rights under the IL WC Act and in no way interfered with the employee’s ability to obtain medical treatment. In this case, by contrast, this federal court ruled Stevenson could not exercise his right to medical treatment without first complying with a policy imposed by the company that required him to take affirmative actions he would not otherwise have to take. The federal court ruled such actions by the employer were plainly “interference” – an act hampering action or procedure. As we indicate above, we feel any of the three cases above could arguably be ruled “retaliation” for the exercise of workers’ compensation rights – who cares when the worker is fired if the termination is for something that happened at any time during a workers’ comp claim?

Eugene Keefe is a founding partner of the Keefe, Anderson, Biery Associates workers' compensation defense law firm in Chicago. This column was reprinted with his permission from the law firm's client newsletter.