Keefe, Campbell & Associates, LLC

Editor’s comment: In Herman v. Power Maintenance & Constructors, LLC, No. 4-08-0509 (February 19, 2009), the Appellate Court was faced with a claim in which Plaintiff was a third-year apprentice boilermaker. He claimed he was terminated due to an injury occurring at work and a subsequent claim for workers’ compensation benefits. Turns out, claimant wasn’t actually terminated he was laid off, later he would claim the employer wouldn’t recall him, as they did with others.

After taking discovery, Defendant asserted, in a motion for summary judgment, it was entitled to summary judgment because plaintiff made three admissions in his deposition that were fatal to his case. Plaintiff had admitted

(1) Defendant laid him off rather than discharged him;

(2) In laying him off, defendant had no intention of retaliating against him for exercising his rights under the Act; and

(3) Defendant had a valid, nonpretextual reason for laying him off, namely, his physical inability to perform the work.

The Appellate Court ruled because the doctrine of judicial admissions was not intended to punish unintentional mistakes and confusion, plaintiff’s misstatement at first summary judgment hearing that plaintiff’s cause of action accrued when defendant initially laid plaintiff off will not be treated as a binding judicial admission.

Further, the Appellate Court ruled the trial court erred when it granted Defendant’s motion for summary judgment, dismissing plaintiff’s complaint for retaliatory discharge; because, although defendant initially laid plaintiff off when his medical limitations as result of a work-related injury prevented him from performing the work that was required, its subsequent letter to union refusing to recall him allegedly because of poor work performance could have been pretextual reason for retaliation because he filed a workers’ compensation claim in the interim.

If you need the cite or have any questions about retaliatory discharge claims, please send a reply.