In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 13‐2199 JEFF PHILLIPS, Plaintiff‐Appellant,
v.
CONTINENTAL TIRE THE AMERICAS, LLC, Defendant‐Appellee. ____________________
Appeal from the United States District Court for the Southern District of Illinois. No. 3:12‐cv‐00307‐JPG‐SCW — J. Phil Gilbert, Judge. ____________________
ARGUED DECEMBER 5, 2013 — DECIDED FEBRUARY 14, 2014 ____________________
Before WOOD, Chief Judge, and SYKES and TINDER, Circuit Judges. TINDER, Circuit Judge. Continental Tire The Americas, LLC (CTA) terminated Jeff Phillips’s employment after he refused to take a drug test upon his initiation of a workers’ compensation claim. Phillips sued, alleging that CTA retali‐ ated against him for seeking workers’ compensation benefits in violation of Illinois law. The district court granted CTA’s 2 No. 13‐2199
motion for summary judgment, and Phillips appealed. For the reasons that follow, we affirm. I. Background CTA has a tire manufacturing facility in Mt. Vernon, Illi‐ nois. Phillips worked there as a passenger general trucker for twenty‐two years until his discharge. The Mt. Vernon fa‐ cility has a health services department that provides medical treatment to sick or injured employees. In April 2010, Phil‐ lips visited the health services department to report that his fingers went numb at work and to initiate a workers’ com‐ pensation claim. At the time, CTA had a written substance abuse policy that required drug testing in certain situations: 1. Pre‐employment testing; 2. Random testing for initial 12 months of employment; 3. For‐cause testing; 4. OSHA re‐ cordable accident; 5. Transportable injury; 6. Serious equip‐ ment/property personal damage incident; and 7. Initiation of workers’ compensation claim. The policy provided that “[r]efusal to submit to testing will be cause for immediate suspension pending termination.” An injured employee could receive medical treatment in the health services de‐ partment and return to work without being required to submit to a drug test if (a) the employee did not seek to initi‐ ate a workers’ compensation claim; and (b) the situation did not fall into one of the other categories for which drug test‐ ing was required under company policy. But an employee who sought to initiate a workers’ compensation claim was required to submit to drug testing or be immediately sus‐ pended pending termination, regardless of whether he re‐ ceived treatment or services at the health services depart‐ ment. No. 13‐2199 3
Phillips was informed that he had to submit to a drug test before he could initiate a workers’ compensation claim and he was shown the CTA drug testing policy. He also was advised that if he didn’t take the drug test, his employment would be terminated. Nonetheless, he refused to take the drug test because he didn’t think that it should be a neces‐ sary consequence of filing a workers’ compensation claim. Phillips was terminated from his employment with CTA for refusing to submit to drug testing upon his initiation of a workers’ compensation claim. CTA’s discharge letter states: “As a result of your refusal to perform the required drug test on April 21, 2010, this letter is serving as notification that your employment is being terminated immediately for viola‐ tion of Company policy,” in particular a “violation of the company’s substance abuse policy.” When asked at his depo‐ sition why CTA terminated him, Phillips stated, “Because I didn’t submit to a drug test.” And when asked if he was con‐ tending that CTA fired him because he filed a workers’ com‐ pensation claim, he answered, “They fired me because I didn’t submit to a drug test.” Phillips agreed that he had no evidence or information that there was a different reason for his discharge. It is his understanding that he would still be employed at CTA if he had taken the drug test. Even though he refused to submit to the test, Phillips did file a workers’ compensation claim. At oral argument CTA’s counsel ad‐ vised the court that Phillips eventually received workers’ compensation benefits. II. Discussion We review the district court’s summary judgment ruling de novo, construing the evidence and drawing reasonable in‐ ferences in favor of the party against whom the motion was 4 No. 13‐2199
made. Beatty v. Olin Corp., 693 F.3d 750, 752 (7th Cir. 2012). Illinois law recognizes a “cause of action for retaliatory dis‐ charge where an employee is terminated because of his actu‐ al or anticipated exercise of workers’ compensation rights.” Id. at 753. To establish a retaliatory discharge claim, a plain‐ tiff must prove: “(1) that he was an employee before the inju‐ ry; (2) that he exercised a right granted by the Workers’ Compensation Act; and (3) that he was discharged and that the discharge was causally related to his [pursuit of] a claim under the Workers’ Compensation Act.” Id. (quoting Clemons v. Mechanical Devices Co., 704 N.E.2d 403, 406 (Ill. 1998)). The only issue in this case is causation. Causation “requires more than a discharge in connection with filing a claim.” Marin v. Am. Meat Packing Co., 562 N.E.2d 282, 286 (Ill. App. Ct. 1990) (citation omitted). The “ultimate issue” regarding causation is “the employer’s mo‐ tive in discharging the employee.” Beatty, 693 N.E.2d at 753 (quoting Clemons, 704 N.E.2d at 406); see also Brooks v. Pactiv Corp., 729 F.3d 758, 768 (7th Cir. 2013) (“[T]he employer … may … be liable for retaliatory discharge if the actual moti‐ vation for the termination was the employee’s pursuit of a workers’ compensation claim.”). To establish causation, the employee “must affirmatively show that the discharge was primarily in retaliation for [his] exercise of a protected right.” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 774 (7th Cir. 2012) (quotation and citation omitted). Phillips did not make this showing. The undisputed facts—including the parties’ stipulation and Phillips’s own deposition testimony—establish that CTA terminated Phil‐ lips because he refused to take a drug test upon initiation of a workers’ compensation claim as required by CTA policy. No. 13‐2199 5
Phillips has admitted that he had no evidence or other in‐ formation that CTA had any other reason for discharging him. CTA consistently has applied its drug testing policy and has discharged other employees who have refused to submit to the drug test pursuant to the policy. Therefore, Phillips cannot establish that his discharge was motivated by his pursuit of a workers’ compensation claim and he cannot prevail on his retaliatory discharge claim. Furthermore, other CTA employees have initiated work‐ ers’ compensation claims and have not been discharged. In‐ deed, Phillips had filed a workers’ compensation claim in the past and was not discharged. In addition, Phillips did initi‐ ate a workers’ compensation claim regarding his April 2010 injury, and he agreed that if he had taken the drug test, he would still be employed at CTA. We are unable to square these facts with the claim of retaliatory discharge. Phillips argues that his discharge was “causally related” to his initiation of his claim under the Workers’ Compensa‐ tion Act and relies on Clark v. Owens‐Brockway Glass Contain‐ er, Inc., 697 N.E.2d 743
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In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 13‐2199 JEFF PHILLIPS, Plaintiff‐Appellant,
v.
CONTINENTAL TIRE THE AMERICAS, LLC, Defendant‐Appellee. ____________________
Appeal from the United States District Court for the Southern District of Illinois. No. 3:12‐cv‐00307‐JPG‐SCW — J. Phil Gilbert, Judge. ____________________
ARGUED DECEMBER 5, 2013 — DECIDED FEBRUARY 14, 2014 ____________________
Before WOOD, Chief Judge, and SYKES and TINDER, Circuit Judges. TINDER, Circuit Judge. Continental Tire The Americas, LLC (CTA) terminated Jeff Phillips’s employment after he refused to take a drug test upon his initiation of a workers’ compensation claim. Phillips sued, alleging that CTA retali‐ ated against him for seeking workers’ compensation benefits in violation of Illinois law. The district court granted CTA’s 2 No. 13‐2199
motion for summary judgment, and Phillips appealed. For the reasons that follow, we affirm. I. Background CTA has a tire manufacturing facility in Mt. Vernon, Illi‐ nois. Phillips worked there as a passenger general trucker for twenty‐two years until his discharge. The Mt. Vernon fa‐ cility has a health services department that provides medical treatment to sick or injured employees. In April 2010, Phil‐ lips visited the health services department to report that his fingers went numb at work and to initiate a workers’ com‐ pensation claim. At the time, CTA had a written substance abuse policy that required drug testing in certain situations: 1. Pre‐employment testing; 2. Random testing for initial 12 months of employment; 3. For‐cause testing; 4. OSHA re‐ cordable accident; 5. Transportable injury; 6. Serious equip‐ ment/property personal damage incident; and 7. Initiation of workers’ compensation claim. The policy provided that “[r]efusal to submit to testing will be cause for immediate suspension pending termination.” An injured employee could receive medical treatment in the health services de‐ partment and return to work without being required to submit to a drug test if (a) the employee did not seek to initi‐ ate a workers’ compensation claim; and (b) the situation did not fall into one of the other categories for which drug test‐ ing was required under company policy. But an employee who sought to initiate a workers’ compensation claim was required to submit to drug testing or be immediately sus‐ pended pending termination, regardless of whether he re‐ ceived treatment or services at the health services depart‐ ment. No. 13‐2199 3
Phillips was informed that he had to submit to a drug test before he could initiate a workers’ compensation claim and he was shown the CTA drug testing policy. He also was advised that if he didn’t take the drug test, his employment would be terminated. Nonetheless, he refused to take the drug test because he didn’t think that it should be a neces‐ sary consequence of filing a workers’ compensation claim. Phillips was terminated from his employment with CTA for refusing to submit to drug testing upon his initiation of a workers’ compensation claim. CTA’s discharge letter states: “As a result of your refusal to perform the required drug test on April 21, 2010, this letter is serving as notification that your employment is being terminated immediately for viola‐ tion of Company policy,” in particular a “violation of the company’s substance abuse policy.” When asked at his depo‐ sition why CTA terminated him, Phillips stated, “Because I didn’t submit to a drug test.” And when asked if he was con‐ tending that CTA fired him because he filed a workers’ com‐ pensation claim, he answered, “They fired me because I didn’t submit to a drug test.” Phillips agreed that he had no evidence or information that there was a different reason for his discharge. It is his understanding that he would still be employed at CTA if he had taken the drug test. Even though he refused to submit to the test, Phillips did file a workers’ compensation claim. At oral argument CTA’s counsel ad‐ vised the court that Phillips eventually received workers’ compensation benefits. II. Discussion We review the district court’s summary judgment ruling de novo, construing the evidence and drawing reasonable in‐ ferences in favor of the party against whom the motion was 4 No. 13‐2199
made. Beatty v. Olin Corp., 693 F.3d 750, 752 (7th Cir. 2012). Illinois law recognizes a “cause of action for retaliatory dis‐ charge where an employee is terminated because of his actu‐ al or anticipated exercise of workers’ compensation rights.” Id. at 753. To establish a retaliatory discharge claim, a plain‐ tiff must prove: “(1) that he was an employee before the inju‐ ry; (2) that he exercised a right granted by the Workers’ Compensation Act; and (3) that he was discharged and that the discharge was causally related to his [pursuit of] a claim under the Workers’ Compensation Act.” Id. (quoting Clemons v. Mechanical Devices Co., 704 N.E.2d 403, 406 (Ill. 1998)). The only issue in this case is causation. Causation “requires more than a discharge in connection with filing a claim.” Marin v. Am. Meat Packing Co., 562 N.E.2d 282, 286 (Ill. App. Ct. 1990) (citation omitted). The “ultimate issue” regarding causation is “the employer’s mo‐ tive in discharging the employee.” Beatty, 693 N.E.2d at 753 (quoting Clemons, 704 N.E.2d at 406); see also Brooks v. Pactiv Corp., 729 F.3d 758, 768 (7th Cir. 2013) (“[T]he employer … may … be liable for retaliatory discharge if the actual moti‐ vation for the termination was the employee’s pursuit of a workers’ compensation claim.”). To establish causation, the employee “must affirmatively show that the discharge was primarily in retaliation for [his] exercise of a protected right.” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 774 (7th Cir. 2012) (quotation and citation omitted). Phillips did not make this showing. The undisputed facts—including the parties’ stipulation and Phillips’s own deposition testimony—establish that CTA terminated Phil‐ lips because he refused to take a drug test upon initiation of a workers’ compensation claim as required by CTA policy. No. 13‐2199 5
Phillips has admitted that he had no evidence or other in‐ formation that CTA had any other reason for discharging him. CTA consistently has applied its drug testing policy and has discharged other employees who have refused to submit to the drug test pursuant to the policy. Therefore, Phillips cannot establish that his discharge was motivated by his pursuit of a workers’ compensation claim and he cannot prevail on his retaliatory discharge claim. Furthermore, other CTA employees have initiated work‐ ers’ compensation claims and have not been discharged. In‐ deed, Phillips had filed a workers’ compensation claim in the past and was not discharged. In addition, Phillips did initi‐ ate a workers’ compensation claim regarding his April 2010 injury, and he agreed that if he had taken the drug test, he would still be employed at CTA. We are unable to square these facts with the claim of retaliatory discharge. Phillips argues that his discharge was “causally related” to his initiation of his claim under the Workers’ Compensa‐ tion Act and relies on Clark v. Owens‐Brockway Glass Contain‐ er, Inc., 697 N.E.2d 743 (Ill. App. Ct. 1998), which states: “An employer may discharge an injured employee who has filed a workers’ compensation claim as long as the reason for the discharge is wholly unrelated to the employee’s claim for ben‐ efits under the Workers’ Compensation Act.” Id. at 746 (em‐ phasis added). That misstates the law. “But‐for” causation is not sufficient to establish retaliatory discharge. See, e.g., Clemons., 704 N.E.2d at 407–08; see also Casanova v. Am. Air‐ lines, Inc., 616 F.3d 695, 698 (7th Cir. 2010) (observing that Clemons “rejected an argument that but‐for causation is enough to establish retaliatory discharge” and that Grabs v. Safeway, Inc., 917 N.E.2d 122 (Ill. App. Ct. 2009), and Finnerty 6 No. 13‐2199
v. Personnel Board, 707 N.E.2d 600 (Ill. App. Ct. 1999), “like Clemons reject the argument that a fired worker can establish causation by showing that a workers’ compensation claim set in motion a chain of events that ended in discharge”); Marin, 562 N.E.2d at 286 (stating that the causal element “re‐ quires more than a discharge in connection with filing a claim”). The initiation of a workers’ compensation claim “was a necessary condition of [Phillips’s] discharge. But it was not a sufficient condition.” See Casanova, 616 F.3d at 697. Clark is unhelpful to Phillips for another reason: the employ‐ er in that case discharged the employee because it thought her claim for benefits was exaggerated and admitted that the discharge was connected to the workers’ compensation claim. There is no such evidence in Phillips’s case. Phillips asserts that the district court erred in relying on a provision of the Illinois Workers’ Compensation Act, 820 ILCS 305/11, not in effect at the time of his injury. (This pro‐ vision establishes a rebuttable presumption that the employ‐ ee was intoxicated and that the intoxication was the proxi‐ mate cause of the employee’s injury if the employee refuses to submit to drug or alcohol testing.) Although the court re‐ ferred to this provision, its grant of summary judgment to CTA was not premised upon it. Rather, the court mentioned the provision only after it determined that Phillips had not suggested CTA had an improper motive in terminating him and that he agreed he was terminated pursuant to the drug testing policy. The court cited the provision as a response to Phillips’s argument that the drug testing policy discourages employees from filing workers’ compensation claims; the court simply referred to the provision as support for its con‐ clusion that there were valid reasons for requiring drug test‐ ing upon the initiation of a workers’ compensation claim. No. 13‐2199 7
The enactment of such a provision certainly reflects that an employer is not out of step with Illinois public policy by re‐ quiring drug testing under certain circumstances. Moreover, any alleged error caused by the district court’s reference to a statutory provision not in effect at the time of Phillips’s dis‐ charge does not undercut the correct determination that Phillips failed to show his discharge was caused by the initi‐ ation of a workers’ compensation claim. Although Phillips argues that the drug testing policy dis‐ courages employees from filing workers’ compensation claims, he could not identify anyone who had been discour‐ aged from filing a claim because of the policy. (And he was not discouraged from filing a claim.) As the district court acknowledged, this discouragement argument is in tension with the current version of Workers’ Compensation Act, which expressly contemplates drug and alcohol testing in connection with workers’ compensation claims. See 820 ILCS 305/11. Furthermore, drug testing in employment is not against Illinois public policy. For instance, the recently en‐ acted Compassionate Use of Medical Cannabis Pilot Pro‐ gram Act provides that “[n]othing in this Act shall prohibit an employer from enforcing a policy concerning drug testing … provided the policy is applied in a nondiscriminatory manner.” 410 ILCS 130/50(b) (effective Jan. 1, 2014). And the Illinois Human Rights Act provides that “[i]t shall not be a violation of this Act for an employer to adopt or administer reasonable policies …, including … drug testing, designed to ensure that an individual described in [the Act] is no longer engaging in the illegal use of drugs.” 775 ILCS 5/2‐104(C). According to Phillips, CTA’s drug testing policy treats similarly situated injured employees differently based solely 8 No. 13‐2199
on whether they seek to initiate a workers’ compensation claim. He argues that CTA cannot justify this disparate treatment. Yet the drug testing policy covers many other sit‐ uations in which CTA faces potential legal exposure; the pol‐ icy does not single out workers’ compensation claimants for testing. For example, testing is required if an OSHA recorda‐ ble accident occurs or if there is a serious equip‐ ment/property/personal damage incident. With the drug testing, CTA seeks evidence for the workers’ compensation proceeding, cf. Parro v. Indus. Comm’n, 657 N.E.2d 882, 885 (Ill. 1995) (relying on blood alcohol testing of claimant fol‐ lowing injury to defeat workers’ compensation claim)— evidence that would be unnecessary where the injured em‐ ployee merely seeks treatment or services at the health ser‐ vices department. This seems to be a sound reason for dif‐ ferential treatment. In conclusion, Phillips’s employment with CTA was ter‐ minated because of his refusal to take the mandatory drug test—not in retaliation for his seeking to file a workers’ com‐ pensation claim. We therefore AFFIRM the district court’s judgment.