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First Illinois case protecting injured workers from being terminated in retaliation for seeking medical treatment for a work related injury. Golasiewicz was fired over a month prior to filing his actual worker's compensation claim, which resulted in the trial court dismissing his lawsuit claiming that he was fired in retaliation for filing that claim. The employer argued that as the injured worked did not seek any benefits prior to the discharge it was impossible for the termination to be in retaliation for the seeking of benefits. The Appellate Court in an unanimous decision reversed and reinstated the claim, including the claim for punitive damages. Matt Belcher Belcher Law Office 351 West Hubbard Street, Suite 650 Chicago, Illinois 60610 (312) 670-9000 [email protected]
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No . 1-08-1375
IN THEAPPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
SIXTH DIVISION
March 27, 2009
MAREK GOLASIEWICZ,
)
Appeal from theCircuit Court of
Plaintiff-Appellant,
)
Cook County .
V .
)
No . 06 L 1435
ANDRZEJ CHMIELECKI, INDIV . and )d/b/a ANDY'S EXPRESS COMPANY, INC ., )MARZENNA CHMIELECKI, and )919 JERICHO, LLC .,
)
HonorableDennis J . Burke,
Defendants-Appellees .
)
Judge Presiding .
O R D E R
Plaintiff Marek Golasiewicz appeals from the trial court'sf
order granting the motion of defendant Andy's Express Company,
Inc . (Andy's Express) to dismiss plaintiff's second amended
complaint pursuant to section 2-615 of the Code of Civil
Procedure (the Code) (735 ILCS 5/2-615 (West 2006)) . On appeal,
plaintiff asserts the trial court improperly dismissed his
complaint because he alleged facts necessary to state a cause of
action for retaliatory discharge and the motion to dismiss by
Andy's Express did not challenge plaintiff's claim alleging a
violation of the Uniform Fraudulent Transfer Act (740 ILCS 160/1
et seq . (West 2006) (UFTA)) .
Initially, we observe that on February 7, 2006, plaintiff
filed a claim with the Illinois Workers' Compensation commission
1-08-1375
(the Commission) based on certain facts that are common to the
case before us . In the triiaL .cart and now on appeal, various
statements have been made relying on testimony presented at the
arbitration proceedings in the separate action before the
Commission ; however, those matters are not before us on appeal .
Thus, we recite only those facts necessary to resolve the issues
in this case .
On February 8, 2006, plaintiff filed the present action in
the trial court against Andy's Express . Ultimately, on February
7, 2008, plaintiff filed a "verified second amended complaint at1
law" naming Andrzej Chmielecki individually (Andy), and doing
business as Andy's Express, Marzenna Chmielecki (Marzenna), and
919 Jericho, LLC . 1
In :Count 1, plaintiff raised a retaliatory discharge claim
for exercising his rights pursuant to the Workers' Compensation
Act (820 ILCS 305/4(h) (West 2004)) (Workers' Comp Act) . He
alleged that on October 29, 2005, he was employed by Andy as a
truck mechanic . On that day, plaintiff fell off of a tire at
work and severely injured his back, eventually becoming a
candidate for surgery . Plaintiff, who had limited English
speaking abilities and business sophistication, informed Andy of
'Defendant Andy's Express is represented on appeal by thesame attorney who represented the company in the trial court .Although defense counsel did not appear to represent the otherdefendants at trial, she now claims to be representing all of thedefendants on appeal .
2
1-08-1375
the injury at about 10 a .m . the same day . Plaintiff told Andy
:that-plaintiff needed to go home due to his pain . In a phone
conversation with Andy at 7 :50 a .m . on October 31, 2005,
plaintiff stated that due to his work-related injury and
outrageous pain, he was unable to come to work that day and was
going to the doctor . The same day, plaintiff saw a doctor, who
removed him from work until further notice . At 8 :15 a .m . the
next day, plaintiff called and informed Andy that due to the work
accident, a doctor had removed plaintiff from work . Plaintiff
called again/at 8 :17 a .m . and asked Andy if plaintiff would be
paid while off of work for the work-related accident . Andy
stated he would not pay plaintiff for his time off of work .
Plaintiff, alleged that Andy knew plaintiff was his employee and
Andy had failed to purchase insurance, apparently referring to
workers' compensation insurance, but Andy lied to plaintiff by
stating he was not Andy's employee, and thus, was not eligible
for payment . When plaintiff'asked Andy if he needed a doctor's
report, Andy responded, "what for?" Plaintiff did not give Andy
a doctor's note because plaintiff believed he would not accept
one . Plaintiff also alleged that Andy had constructive notice of
his obligations under the Workers' Comp Act and began a course of
conduct designed to interfere with plaintiff's exercise of his
rights under that Act . Andy misled plaintiff, overworked him for
someone with his medical condition, hoped plaintiff would be
1-08-1375
unable to fully perform his duty and hoped he would be less
likely, to learn of his rightswif facing economic-stress .
Plaintiff alleged that in the beginning of November 2005, he
was unable to keep up with work demands due to his injury and
received Andy's permission to have Krysztof Kordula come and
assist plaintiff at work . Kordula was also present in the
beginning of that month when plaintiff explained to Andy that his
work-related accident caused him to be unable to perform his
normal duties . Plaintiff continued working for the remainder of
November and through the middle of December 2005, when he was
informed ovek the telephone that his employment was terminated .
Plaintiff alleged that Andy knew plaintiff was not improving and
Andy's beet opportunity to avoid liability was to terminate him .
When plaintiff returned his work key in January 2006, he
discovered a new mechanic was working at Andy's Express .
Plaintiff argued that Illinois law did not require him to
demonstrate he was fired for actually filing a workers'
compensation claim ; rather, it was sufficient to demonstrate that
employment was terminated in retaliation for his activities and
to prevent him from exercising statutory rights . He argued that
here, Andy intended for plaintiff to leave his job so that Andy
would not be required to pay medical bills and other benefits
provided under the Workers' Comp Act . He also argued that
unscrupulous employers may intimidate employees to keep them from
1-08-1375
exercising their rights under the Act and an injured employee
- with poor job prospects or- •a family. to feed may succumb to his
employer's intimidation . In addition, he argued that Andy
breached his statutory duty to plaintiff under the Workers' Comp
Act by discharging plaintiff and causing him to incur damages,
including the right to pay, benefits and the opportunity for
advancement . He sought $50,000 and the recovery of fees and
costs incurred in his lawsuit .
In Count 2, plaintiff complained of a UFTA violation by all
the defendants . Plaintiff recounted certain facts alleged in the
first count ;' however, he specified that although his doctor
removed him from work through August 2007, he worked occasionally
in November and December 2005 despite his condition . Plaintiff
alleged that after his injury, Andy, doing business as Andy's
Express, became aware of his potential liability for a workers'
compensation claim .
Plaintiff alleged that Andy's Express operated on real
property owned by Andy and his wife Marzenna at 919 Jericho Road
in Aurora, Illinois . Plaintiff alleged that Andy and Marzenna
commingled said real property with the property of Andy's
Express, which never paid a fair market rent to them for use of
the property, and the three defendants failed to properly account
for their individual assets and liability regarding the ownership
of equipment used by Andy's Express, and property owned by Andy
1-08-1375
and Marzenna . Plaintiff asserted that due to the commingling
between said defendants;-wit was impossible to account-=for the
liabilities of Andy's Express, and thus, Andy and Marzenna were
personally responsible for its liability .
In addition, plaintiff alleged that on April 27, 2006, an
arbitrator awarded him a total of $16,028 .52 in back temporary
disability benefits, unpaid medical bills, penalties and attorney
fees . Plaintiff alleged that on some unspecified date, the
defendants filed a petition for review of the Arbitrator's
decision in order to delay collection on the award and allegedi
that as a result of the award, Andy and Marzenna formed the 919
Jericho LLC and the Marzenna Chmielecki Revocable Trust as
fraudulent shell entities in order to obfuscate their personal
assets . On November 20, 2006, Andy and Marzenna recorded with
the record of deeds the sale of the real property at 919 Jericho
Road for $0 to 919 Jericho LLC . They also sold their property at
771 Mather Lane in Batavia for $0 to the Marzenna Chmielecki
Revocable Trust . Plaintiff argued that the beneficial owners of
the LLC were Andy and Marzenna and the sale price of $0 for the
Jericho Road property was prima facie evidence of the fraudulent
nature of the transfer .
Plaintiff alleged that under the UFTA he was a creditor who
asserted a claim and defendants were debtors, insiders and
relatives . Plaintiff alleged the defendants possessed an asset
1-08-1375
and property under the UFTA in that they knew they had commingled
their--personal assets with the assets-and liabilities of Andy's
Express . In addition, plaintiff alleged that during the pendency
of his claim, the defendants transferred the real property
without receiving a reasonably equivalent value in exchange, and
reasonably believed they would incur debts beyond their ability
to pay as they became due under plaintiff's award . Plaintiff
alleged that after the defendants learned of plaintiff's claim,
the transfers occurred and they were fraudulent as provided for
under the UFTA . Plaintiff sought a determination that the
transfers were fraudulent, an order voiding the transfer of the
property, an injunction against further disposition of real
property,, and the appointment of a receiver to take charge of the
real property transferred and dispose of it . He also sought the
transfer of the claim to the presiding judge of the law division
for assignment within the chancery division .
In Count 3, plaintiff sought punitive damages for the
retaliatory discharge claim, alleging, in pertinent part, that
Andy fired him with intent and actual malice or alternatively,
the discharge was committed with such gross negligence as to
indicate a willful and wanton disregard of plaintiff's rights .
Plaintiff alleged he was entitled to punitive damages as a result
of Andy's actions .
On March 4, 2008, defendant Andy's Express, filed a motion
1-08-1375
to dismiss the complaint pursuant to section 2-615, arguing, in
pertinent part, that the complaint failed to -state •facts~`-
sufficient to sustain the cause of retaliatory discharge .
Specifically, Andy's Express argued that the issue of whether
plaintiff was an employee, whether he gave notice of an accident
and whether Andy's Express was obligated to provide plaintiff
with benefits had been litigated already and thus, certain items
in the complaint were not relevant to this cause of action .
Andy's Express also asserted that other items in the complaint
were conclusory, irrelevant, legal statements or misstatements of
law. In addition, Andy's Express argued that testimony before
the arbitrator in the separate cause before the commission
negated certain items and the trial court had the advantage of
having the official transcript of plaintiff's own account of the
events leading to his discharge, which showed he could not allege
facts sufficient to state a cause of action .
In his response filed on March 7, 2008, plaintiff argued that
contrary to Andy's testimony before the Commission, it was now
admitted that plaintiff was the employee of Andy's Express and by
virtue of two telephone calls, plaintiff put Andy on notice that
he sought or was going to seek benefits under the Workers' Comp
Act . Plaintiff argued that Illinois law allowed retaliatory
discharge claims to be based on an interference with the exercise
of any right under that act . Plaintiff also referred to
1-08-1375
testimony from the arbitration proceeding .
Andy's Express filed a reply on April 101 2006, again
referring to evidence adduced in the separate action before the
Commission . Andy's Express argued that plaintiff's response
contained untrue, conclusory and irrelevant statements, and
plaintiff could not allege facts showing he was discharged in
retaliation .
On May 2, 2008, the trial court held oral arguments
regarding the motion to dismiss the complaint ; however, the
transcript is not included in our record on appeal .
On May 1 5, 2008, the court dismissed with prejudice the
retaliatory discharge count, finding that the complaint was4
devoid of factual allegations that defendant Andy's Express was
informed or otherwise found out that plaintiff intended to pursue
relief under the Workers' Comp Act . The court then stated, "[a]s
a result of Count I being dismissed with prejudice, Counts II and
III necessarily are, dismissed with prejudice ."
In his emergency motion to reconsider filed on May 6, 2008,
plaintiff argued that fraudulent transfer was a separate cause of
action and the court should not have dismissed with prejudice
Counts 2 and 3 . Plaintiff argued that the defendant did not file
a responsive pleading to those counts and the court did not
specifically find those counts failed to state causes of action .
The trial court ordered the dismissal order to stand on May
1-08-1375
9, 2008 .
On appeal, plaintiff first-- as'sezts -the" trial-
--court-improperly dismissed his complaint because he stated a claim for
retaliatory discharge by alleging that he was discharged after he
informed his employer Andy's Express of his intent to exercise
his rights under the Workers' Comp Act by seeking medical
treatment and by his subsequent injury and compensation-related
discussions with Andy .
An order granting a section 2-615 motion to dismiss is
subject to de novo review . Brewster v . Rush-Presbyterian-St .iiLuke's Medical Center, 361 Ill . App . 3d 32, 35 (2005) . This is
because ruling on a motion to dismiss does not require the trial
court to assess credibility or weigh facts . Vernon v . Schuster,
179 Ill . 2d 338, 343 (1997) . This court may affirm the trial
court's judgment on any grounds found in the record . Seith v .
Chicaqo Sun-Times, Inc ., 371 Ill . App . 3d 124, 133 (2007) .
A section 2-615 motion t dismiss challenges a complaint's
legal sufficiency by alleging defects on its face . City of
Chicaqo v . Beretta U .S .A . Corp ., 213 Ill . 2d 351, 364 (2004) .
Under our fact-pleading standard, the plaintiff must allege
sufficient facts to support a legally recognized cause of action .
Beretta U .S .A . Corp ., 213 Ill . 2d at 368 . Absent the necessary
allegations, that requirement is not satisfied by the general
policy favoring liberal construction of the pleadings . Beretta
1-08-1375
U .S .A . Corp ., 213 Ill . 2d at 368 . In considering a motion to
dismiss, the court must disregard the pleaded conclusions and -
look only to well-pleaded facts . Beretta U .S .A . Corp ., 213 Iii .
2d at 368 . In reviewing the sufficiency of the complaint, the
court accepts all well-pleaded facts and all reasonable
inferences which may be drawn therefrom as true, and construes
the complaint s allegations in
plaintiff . Beacham v . Walker, 231 Ill . 2d 51, 57-58 (2008) .
Only the four corners of the complaint and the documents appended
to it are to/be considered (Seith, 371 Ill . App . 3d at 133), and
a plaintiff' is not required to set forth the evidence in his
complaint (Marshall v . Burqer Kinq Corp ., 222 Ill . 2d 422, 429-30:z(2006)) . ; A cause of action should not be dismissed pursuant to
section 2-615 unless it is apparent that no set of facts can be
proven entitling the plaintiff to recovery . Marshall, 222 Ill .
2d at 429 .
An injured plaintiff states a valid claim for retaliatory
discharge by alleging that (1) he was the defendant's employee
before the injury ; (2) he exercised rights granted by the
Workers' Comp Act ; and (3) his discharge was causally related to
the filing of his claim or the exercise of his right under the
Act . Clemons v . Mechanical Devices Co ., 184 Ill . 2d 328, 335-36
(2000) .
the light most favorable to the
(1998) ; Paz v . Commonwealth Edison, 314 Ill . App . 3d 591, 594
1-08-1375
First, plaintiff specifically alleged that he was an
employee of Andy when he sustained his-injury .- .'Andy does not
dispute that plaintiff worked for him and does not argue on
appeal that plaintiff was not an employee . Defendant Andy's
Express addresses this element by stating in its motion to
dismiss that "whether or not the Plaintiff was an employee ***
[has] already been litigated and [is] not relevant to this
cause ." Contrary to defendants' contention, plaintiff's status
as an employee is not only relevant but also essential to allege
a retaliatory discharge claim . We find the first element of a
retaliatory discharge cause of action has been sufficiently
alleged, : in the second amended complaint .
The second and third elements are at issue because here,
plaintiff actually filed a worker's compensation claim in
February 2006 after Andy had discharged him in January 2006 .
However, a retaliatory discharge claim is founded on the
employer's interference with an employee's intent to exercise his
right under the Worker's Comp Act, which provides as follows :
"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 *** because of his or
her exercise of the rights or remedies
1-08-1375
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 ." 820 ILCS 305/4(h) (West
2004))
This section plainly prohibits an employer's retaliatory
discharge of an employee due to his exercise of workers'
compensation rights . Smithv.Waukegan Park District, 231 Ill .
2d ill, 119 1(2008)
Retaliatory discharge actions are allowed where an employee
is discharged in anticipation of his filing a claim under the
Workers' ,Comp Act . Jacobson v . Knepper & Moga, P .C ., 185 Ill . 2d
372, 376 (1998) . Thus, it is unnecessary for a plaintiff to have
actually filed his workers' compensation claim while still
employed . Richardson v . Illinois Bell Telephone Co ., 156 Ill .
App . 3d 1006, 1010 (1987) . Requesting and seeking medical
attention is the crucial first step in exercising rights under
the Workers' Comp Act and has the same effect as filing a formal
compensation claim . Hinthorn v . Roland's of Bloominqton, Inc .,
119 Ill . 2d 526, 534 (1988) . Both are assertions to legal rights
to medical care for work injuries . Hinthorn, 119 Ill . 2d at 534 .
This court has also held a cause of action to be sufficiently
pled even in the absence of allegations that the employer was
1-08-1375
specifically informed of the employer's intent to file a claim,
where a court could reasonably--infer that the- employer recognized
the employee could file a valid worker's compensation claim and
sought to prevent that possibility . Wolcowicz v . Intercraft
Industries Corp ., 133 Iii . App . 3d 157, 159, 160-61 (1985) . In
addition, a cause of action is not precluded due to mere delay in
filing a claim. See Wolcowicz, 133 Ill . App . 3d at 162 . it
would be anomalous to allow a cause of action to employees fired
after filing a workers' compensation claim, but not to employees
who are injured and fired before having the chance to file such ai
claim . Hinthorn, 119 Ill . 2d at 534 .
Here, the complaint's well-pleaded facts and reasonable
inferences which may be drawn therefrom satisfy the pleading
requirements for the second and third elements . Although
plaintiff did not allege that he directly asked Andy to pay for
his medical expenses, plaintiff's allegations indicate that Andy
clearly knew plaintiff had sought medical treatment for his
injury and was offering to obtain a doctor's note if necessary .
Plaintiff also sought compensation from Andy for time away from
work due to the injury . Thus, a reasonable inference from those
facts indicate that Andy recognized plaintiff was attempting to
exercise his rights under the Workers' Comp Act and eventually
terminated plaintiff to prevent him from filing a valid
compensation claim when his condition worsened . See Wolcowicz,
1-08-1375
133 Ill . App . 3d at 160 . In addition, it was unnecessary for
plaintiff to allege that he filed a - compensation -claim while'
still employed .
Although defendant relies on testimony from the
aforementioned Commission proceeding and the absence of evidence
supporting plaintiff's claims, we reiterate that the testimony
from the separate proceedings before the Commission is not
properly before us ; rather, we are confined to the four corners
of the second amended complaint which plaintiff filed in the
trial court ,and plaintiff was not required to set forth evidence
in his complaint . Contrary to defendant's representations on
appeal, there is no evidence refuting plaintiff's claim because
at this pleading stage, there is no evidence .
In determining that plaintiff alleged facts sufficient to
state a cause of action, we observe that both parties rely on the
decision in Roger v . Yellow Freight Systems, Inc ., 21 F . 3d 146
(1994) . However, that case 'does not warrant a different
conclusion here primarily because Yellow Freight was decided
after the entry of summary judgment in favor of the employer .
Yellow Freight, 21 F . 3d at 147, 148 . Unlike the present case,
which involved a decision on the complaint only, a summary
judgment decision is made after evidence or discovery is
included . Moreover, Yellow Freight recognized that a viable
cause of action for retaliatory discharge does not require the
1-08-1375
actual filing of a workers' compensation claim . Yellow Freight,
21 F . 3d at 150 ; see' also -Sweat v.-Peabody Coal, Co
94 F . 3d
301, 305 (1996) . Notably, in its order, the trial court found
Andy's motion for summary judgment was rendered moot by its
decision to dismiss plaintiff's complaint with prejudice .
Accordingly, we cannot speculate as to the outcome of such
proceedings here .
Having determined that the trial court improperly dismissed
Count 1 of the complaint because it alleged sufficient facts to
establish a claim of retaliatory discharge, we also find that the
trial court improperly dismissed Count 3 because punitive damages
are allowed for such a claim . Bajalo v . Northwestern University,I
369 Ill . App . 3d 576, 580 (2006) ; Hollowell v . Wilder Corp.. of
Delaware, 318 Ill . App . 3d 984, 988 (2001) .
.Next, plaintiff asserts that the trial court improperly
dismissed his claim under the UFTA because the defendants never
filed any motion challenging that claim, which stood
independently from his retaliatory discharge claim .
Here, the section 2-615 motion filed by Andy's Express was
not directed at the UFTA count . Rather, the trial court found
that the retaliatory discharge count served as the foundation for
the UFTA count and, thus, the UFTA must necessarily be dismissed
with prejudice also . Notably, the UFTA - count in the second
amended complaint appears to be premised on an arbitrator's award
1-08-1375
entered on April 27, 2006, not on the retaliatory discharge
count . In addition, a plaintiff may file a complaint allegi'hg ,' -
only a violation of a claim under the UFTA . See A.P . Properties,
Inc . v . Goshinsky_, 186 Ill . 2d 524, 527 (1999) . Nevertheless,
applying the same reasoning employed by the trial court, our
finding that the retaliatory discharge claim should not be
dismissed with prejudice pursuant to section 2-615, we also find
that the UFTA count should remain . This result is particularly
appropriate here because neither party on appeal provides a well-
reasoned argument or cites legal authority for a positioni
premised on section 2-615 .
FQ17 all the foregoing reasons, we reverse the dismissal with
prejudice'of plaintiff's second amended complaint and remand for
further proceedings .
Reversed and remanded .
JOSEPH GORDON, J ., with O'MALLEY, P .J ., and CAHILL, J ., concurring .
11
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