Holland v. Schwan's Home Service, Inc.

ILLINOIS OFFICIAL REPORTS

Appellate Court

Holland v. Schwan’s Home Service, Inc., 2013 IL App (5th) 110560

Appellate Court LARRY W. HOLLAND, Plaintiff-Appellee, v. SCHWAN’S HOME

Caption SERVICE, INC., Defendant-Appellant (The Schwan Food Company,

Schwan’s Shared Services, LLC, and Gary Young, Defendants).

District & No. Fifth District

Docket No. 5-11-0560

Filed May 30, 2013

Rehearing denied July 1, 2013

Held In an action arising from a back injury claimant suffered at work, the

(Note: This syllabus evidence supported the jury’s finding that claimant was terminated from

constitutes no part of his position in retaliation for exercising his rights under the Workers’

the opinion of the court Compensation Act and the award for compensatory and punitive damages

but has been prepared was upheld.

by the Reporter of

Decisions for the

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of Franklin County, No. 09-L-56; the Hon.

Review E. Kyle Vantrease, Judge, presiding.

Judgment Affirmed.

Counsel on Michael F. Dahlen, of Feirich/Mager/Green/Ryan, of Carbondale, Robert

Appeal E. Arroyo, of Jackson Lewis LLP, of Chicago, and Alan L. Rupe and

Richard A. Olmstead, both of Kutak Rock LLP, of Wichita, Kansas, for

appellant.

Thomas F. Crosby, of Winters, Brewster, Crosby & Schafer, LLC, of

Marion, for appellee.

Panel JUSTICE STEWART delivered the judgment of the court, with opinion.

Justice Goldenhersh concurred in the judgment and opinion.

Presiding Justice Spomer dissented, with opinion.

OPINION

¶1 This case involves a lawsuit filed by the plaintiff, Larry W. Holland, alleging that his

former employer, Schwan’s Home Service, Inc. (Schwan’s), terminated his employment in

retaliation for his exercising his rights under the Illinois Workers’ Compensation Act (the

Act) (820 ILCS 305/1 to 30 (West 2008)). After a seven-day trial, a jury returned a verdict

in Holland’s favor on his retaliatory discharge claim, awarding him a total of $4,260,400 in

compensatory and punitive damages. The punitive damages portion of the award was $3.6

million.

¶2 Throughout the trial court proceedings, Schwan’s denied Holland’s assertion that it

terminated his employment. Instead, it maintained that when Holland recovered from his

work accident and was ready to return to work, it offered him an available position at the

facility where he previously worked, but he refused to report for work. At several stages of

the lower court proceedings, Schwan’s requested the circuit court to decide the issue of

whether it had terminated Holland in its favor as a matter of law, rather than submitting the

issue for the jury to decide. Prior to the trial, Schwan’s made this request in a motion for

summary judgment that the circuit court denied. After the conclusion of Holland’s case in

chief, it made the request again in a motion for a directed verdict. Again, the circuit court

denied the motion. In denying Schwan’s motion for a directed verdict, the circuit court found

that Holland had presented sufficient evidence for the jury to conclude that he was

terminated. It noted that Schwan’s was “free to argue to the jury” that Holland was not

terminated, but it was “up to the finder of fact to make that determination.” Finally, after the

jury considered the evidence and entered a verdict in Holland’s favor, Schwan’s raised this

issue again in a posttrial motion requesting the circuit court to enter a judgment

notwithstanding the jury’s verdict (judgment n.o.v.). The circuit court again denied Schwan’s

request.

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¶3 Schwan’s now appeals the judgment entered on the jury’s verdict and argues that the

circuit court should have entered a judgment n.o.v. in its favor because the evidence

conclusively established that it did not terminate Holland’s employment. Schwan’s also

advances alternative arguments under a judicial estoppel theory and a standing theory and

takes issue with the circuit court’s jury instructions, certain evidentiary rulings, and the

amount of the jury’s award for compensatory and punitive damages. For the following

reasons, we affirm.

¶4 BACKGROUND

¶5 The legislature enacted the Workers’ Compensation Act as a compromise between

employers and employees with respect to compensation for work-related injuries. Under the

statutory scheme, employees gave up their common law right to sue their employers in tort,

but gained the right to recover for injuries arising out of and in the course of their

employment without regard to fault. Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 180, 384 N.E.2d

353, 356 (1978). Employers gave up their common law defenses to claims involving work-

related accidental injuries or death, but their liability became fixed under the statutory

scheme. Id. The ability of this statutory scheme to provide efficient and expeditious remedies

for injured workers would be seriously undermined if employers could simply terminate or

threaten to terminate employees for seeking their rights and remedies under the statute. Id.

at 181, 384 N.E.2d at 357. “[W]hen faced with such a dilemma many employees, whose

common law rights have been supplanted by the [Workers’ Compensation] Act, would

choose to retain their jobs, and thus, in effect, would be left without a remedy either common

law or statutory.” Id. at 182, 384 N.E.2d at 357.

¶6 In 1975, the legislature amended the Workers’ Compensation Act to include section 4(h),

which expressly prohibits an employer from discharging an employee because the employee

exercises his rights or remedies granted to him under the Act. Pub. Act 79-79, § 1 (eff. July

1, 1975). In the present case, in order for Holland to succeed in his claim against Schwan’s

for retaliatory discharge, he had to prove to the jury that he was an employee before his

injury, that he exercised a right granted by the Workers’ Compensation Act, that he was

discharged by Schwan’s, and that his discharge was causally related to his filing a claim

under the Workers’ Compensation Act. Clemons v. Mechanical Devices Co., 184 Ill. 2d 328,

335-36, 704 N.E.2d 403, 406 (1998). As noted above, Schwan’s takes issue with the jury’s

finding that Holland proved that it discharged him from his employment.

¶7 Schwan’s challenge to the “discharge” element of Holland’s claim is presented to us on

appeal by way of Schwan’s argument that the circuit court erred in denying its motion for a

directed verdict and/or its motion for a judgment n.o.v. “Although motions for directed

verdicts and motions for judgments n.o.v. are made at different times, they raise the same

questions and are governed by the same rules of law.” Lawlor v. North American Corp. of

Illinois, 2012 IL 112530, ¶ 37, 983 N.E.2d 414. Our review of the circuit court’s denial of

Schwan’s request for a judgment n.o.v. requires us to consider all of the evidence and

reasonable inferences in the light most favorable to Holland to determine whether there was

a total failure or lack of evidence to prove the discharge element of his claim. Id. This

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standard is a high one. Id. Accordingly, in discussing the background relevant to Schwan’s

contention on appeal, we look at the trial evidence in the light most favorable to Holland and

with all reasonable inferences construed in his favor on the issue of whether Schwan’s

terminated his employment. If reasonable minds differ concerning inferences or conclusions

to be drawn from the evidence, entry of a judgment n.o.v. is not appropriate. Id.

¶8 Schwan’s is in the business of marketing and distributing a variety of frozen food

products to consumers for home consumption. Holland began working for Schwan’s on July

12, 2004, as a “district project manager.” However, he held that position for only two months

before Schwan’s discontinued this position. Schwan’s then offered Holland a position as a

“sales supervisor.” As part of his duties as a sales supervisor, Schwan’s trained Holland in

its employment procedures. Holland explained to the jury that, for job transfers within the

company, Schwan’s employment procedures included a website that employees could log

onto using their employee number. Once logged on, an employee was able to review any

internal offers extended to employees for job reassignments. The information available on

the website included a written internal offer, the compensation package, vacation benefits,

and other information related to the new position being offered. According to Holland, a

written “internal offer” was the customary way Schwan’s internally moved its employees

from one position to another. When Schwan’s eliminated Holland’s district project manager

position in 2004, it notified him of his transfer offer to the sales supervisor position by

issuing him a written internal offer.

¶9 Holland worked for Schwan’s as a sales manager until July 2006, when Schwan’s

discontinued that position. Schwan’s then offered Holland the position of “facility

supervisor” at its depot in West Frankfort, Illinois. This was the position that Holland

occupied when he was involved in his work-related accident that occurred in August 2008.

Again, when Schwan’s transferred Holland to this new position, it issued him another written

internal offer. The written “Internal Offer Letter” was admitted into evidence at the trial, and

it included a summary of the offer’s terms and conditions and a line for Holland to sign as

his acceptance of the offer. Holland indicated that he was familiar with “all the different

parts” of Schwan’s internal offer letters because they were the customary way that Schwan’s

moved someone from one position to another and because his reassignment in July 2006 was

the second time he had received a written internal offer letter from Schwan’s. He also

testified that he continued to receive a salary from Schwan’s during his transition from sales

supervisor to facility supervisor.

¶ 10 Holland’s duties as the facility supervisor at the West Frankfort depot included managing

the facility, maintaining inventory, managing the movement of goods in and out of the

facility, and managing and helping the employees (material handlers) who physically handled

and moved the goods in and out of the facility. He was responsible for keeping track of

inventory, both stored in the depot’s storage freezer and loaded onto the depot’s delivery

trucks. In managing inventory, he was responsible for controlling the amount of goods that

inexplicably disappeared from the depot’s inventory (shrinkage) and the amount of goods

that could not be sold to consumers because of defects (damage). He was also responsible

for the maintenance of the depot property and delivery trucks. At the end of his workday, he

was responsible for mowing the depot’s yard if necessary, mopping floors, and emptying

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trash. Holland worked at night. Typically, he arrived at work at 11 p.m. and worked until his

daily tasks were completed, sometimes until 8 a.m. and many times past 10 a.m.

¶ 11 During his time as the facility supervisor at the West Frankfort depot, he managed two

material handlers who also worked at the depot, Tom Pietrantoni and Chris Owens. The two

material handlers worked at night along with Holland and were involved with unloading

products from semitrucks into the depot’s storage freezer, inventorying the products in the

freezer, loading products from the storage freezer onto the delivery trucks, and inventorying

the products on the delivery trucks. As the facility supervisor, Holland’s job duties required

him to perform all of the same functions that the material handlers performed, working with

them side by side, including unloading and loading trucks and handling products in the

freezer.

¶ 12 When Holland began working as the facility supervisor for the West Frankfort depot, his

immediate supervisor was Mick Heggaton. Heggaton was employed by Schwan’s as the

“location general manager” of the West Frankfort, Illinois, depot. The location general

manager’s duties included overseeing sales and making sure that the depot was running

smoothly. The location general manager (Heggaton) and facility supervisor (Holland) both

reported to Schwan’s district general manager, Steven Wolfenbarger. As a district general

manager, Wolfenbarger was in charge of overseeing sales and operations in a district that

encompassed parts of Illinois and Indiana, including the West Frankfort depot. A regional

operations manager, Doug Crider, was responsible for operational decisions and profit

decisions within a geographic region that included the West Frankfort depot. Crider’s

authority included decisions concerning how many employees could be employed at the West

Frankfort depot and how many hours the employees could work.

¶ 13 After the end of each year, the location general manager was responsible for conducting

an evaluation of the facility supervisor’s job performance for the year. Schwan’s yearly

evaluation form included ratings for specific performance factors and an overall performance

rating. The rating choices for each performance factor and for the employee’s overall

performance were one of four options: (1) exceeds expectations, (2) meets expectations, (3)

some improvement required, or (4) does not meet expectations. In addition, the evaluation

forms contained an area for the employee to write his own comments.

¶ 14 According to Holland, the yearly performance evaluation had to be completed before the

end of March of the following year. Prior to the evaluation, the employee had to submit a

self-critique sheet to his supervisor. The employee submitted the self-critique sheet by mid-

February. The supervisor then filled out the evaluation form, went over the previous year’s

goals and performance with the employee, and established performance goals and objectives

for the upcoming year.

¶ 15 For 2006, Heggaton rated Holland’s overall performance as “some improvement

required.” Heggaton noted in the report that Holland assumed the facility supervisor position

in July 2006 and was developing at an acceptable pace, but still needed to improve in some

areas, including the development of his workforce into a more organized team. Holland did

not write any comments in the employee comment section of the 2006 evaluation. He

testified, “We both understood that there was no way I was going to be able to convert Mr.

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Owens, so there was no reason to make any comment.” The 2006 evaluation was signed and

dated by Heggaton and Holland on March 6, 2007.

¶ 16 Early in 2008, prior to the completion of the 2007 yearly evaluation, the location general

manager at the West Frankfort facility changed from Heggaton to Ryan Underwood. In

March 2008, Underwood completed Holland’s yearly evaluation for 2007. Underwood and

Holland signed the 2007 evaluation on March 13, 2008. Underwood rated Holland’s overall

performance in 2007 as “some improvement needed.” In the employee comments section,

Holland noted that the evaluation was based on four months of observation and that he had

not been formally trained for his position, but had plans in place to get on-the-job training

from an experienced facility supervisor. At the time of the annual review, Schwan’s

presented him with two awards for his performance in 2007: one for meeting his goals in

managing inventory (damage and shrinkage) and another for meeting his goals for labor

hours. Also, effective March 2, 2008, Schwan’s awarded Holland a 2% raise in his salary.

¶ 17 On Friday, August 22, 2008, Holland and the material handlers, Pietrantoni and Owens,

were in the process of unloading goods from a semitruck into the depot’s freezer when

Holland slipped on some ice and fell on his back. He continued to work and finished the

shift. Initially, he did not seek any medical attention. He hoped to make it through the

weekend without any problems. However, on Monday, August 25, 2008, he decided that he

needed to seek medical attention.

¶ 18 Dr. Lueking examined Holland’s back, diagnosed his back injury, and suspected a

possible ruptured disc. Dr. Lueking concluded that Holland could return to work with the

following restrictions on his work duties: “no heavy lifting, no prolonged standing and

should be on light duty only with minimal driving.”

¶ 19 At the time of Holland’s accident, a company called Schwan’s Shared Services, LLC

(Shared Services), provided Schwan’s with a number of management services, including

workers’ compensation specialists who managed Schwan’s workers’ compensation claims.

The workers’ compensation specialists’ duties included coordinating with Schwan’s workers’

compensation insurance carrier, Hartford Insurance Company (Hartford), and with Hartford’s

third-party administrator, Specialty Risk Services (SRS). SRS administered workers’

compensation claims on behalf of Hartford.

¶ 20 On August 25, 2008, one of Shared Services’ workers’ compensation specialists, Eva

Bruns, opened a “leave of absence” file to document actions and communications concerning

Holland’s work-related injuries, treatments, and workers’ compensation benefits. Bruns did

not testify at the trial, but her notes that she made in the leave-of-absence file were admitted

into evidence. When Bruns opened the leave-of-absence file on Holland’s injury, she noted

Holland’s work restrictions in the file. Testimony at the trial indicated that Holland’s work

restrictions were coordinated between the workers’ compensation specialist and the location

general manager and that it was their responsibility to see that Holland worked within his

restrictions.

¶ 21 Schwan’s claims that, beginning on August 25, 2008, it placed Holland in its “temporary

alternative duty” (TAD) program. The purpose of Schwan’s TAD program is to provide

injured workers with temporary job duties within their medical restrictions if such work is

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available. Typically, Schwan’s allowed an employee to be in the TAD program for 90 days,

but it also allowed extensions depending on the employee’s situation, including whether he

was improving or close to returning to full duty.

¶ 22 As long as the employee continued to work through the TAD program, Schwan’s would

not discharge the employee because he could not perform full job duties. The Family and

Medical Leave Act of 1993 (FMLA) (29 U.S.C. § 2601 (2006)) also provided Holland with

up to 12 weeks of unpaid leave of absence for medical reasons. Schwan’s, however,

determined that it could begin running the clock on Holland’s FMLA protection while he

was on light duty. Therefore, once Schwan’s placed Holland in its TAD program, it began

to run the clock on the 12-week leave that he was entitled to under FMLA.

¶ 23 When Holland discussed his work restrictions with his supervisor, Ryan Underwood,

Underwood told him, “that is fine, as long as the job gets done.” Under Schwan’s TAD

program, it was the responsibility of the location general manager on duty to make sure that

the duties assigned to an injured facility supervisor did not exceed his job restrictions. One

of Shared Services’ workers’ compensation specialists testified at the trial, “Our managers

know that they need to keep their employees within those restrictions.”

¶ 24 Even though Holland was placed in Schwan’s TAD program, Underwood did not take

any action to modify Holland’s job duties and did not take over any of his duties that fell

outside his work restrictions. Although he was supposed to be in the TAD program,

Holland’s job duties did not change; he had to complete all of the same tasks that he did

before the accident. The duties included working side by side with the material handlers,

lifting items over 25 pounds when loading delivery trucks and moving goods in the freezer,

hanging with one hand on a delivery truck’s side rails while loading goods, and rearranging

goods onto 15 delivery trucks. In addition, Holland endured prolonged standing, bending,

and twisting during the loading and unloading of goods, when refueling the delivery trucks,

and while inventorying the delivery trucks. These were all activities that fell outside

Holland’s light-duty work restrictions. Holland testified that the facility supervisor position

involved only a small amount of managerial work that was performed in front of a computer

in a sitting position.

¶ 25 In September 2008, Holland followed up with his treating physician, and his doctor

continued the previous light-duty restrictions. On September 19, 2008, his doctor referred

him to a neurosurgeon. In the doctor’s slip dated September 19, 2008, the doctor wrote that

Holland’s light-duty restrictions should continue “for the next 30 days.” On October 17,

2008, his treating physician continued the light-duty restrictions with additional restrictions

that included no lifting greater than five pounds and no prolonged exposure to cold

temperatures.

¶ 26 Each time Holland received new restrictions from a doctor, he presented the written

restrictions to his immediate supervisor and faxed a copy to the workers’ compensation

specialist handling his case. However, at this point, no one within Schwan’s organization

modified Holland’s job duties to comply with the restrictions or offered him extra help so

that he did not have to perform the duties outside his work restrictions. He continued to

perform all of the same duties he was required to perform prior to the accident.

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¶ 27 As Holland continued to perform job duties outside his work restrictions, his back

condition and symptoms became worse, and he began experiencing numbness in his legs. On

December 1, 2008, Holland was examined by a neurosurgeon, Dr. Vaught, who diagnosed

Holland as having strained his back muscles and suffering from a bulging disc. Dr. Vaught’s

job restrictions for Holland at that time included restricting him from lifting over 25 pounds

and from performing repetitive bending, stooping, and kneeling. In addition, Dr. Vaught

prescribed physical therapy.

¶ 28 Again, Holland presented Dr. Vaught’s new restrictions to his supervisor, Underwood,

and complained to Underwood that the condition of his low back was becoming severe. He

explained that he was having a particularly hard time working in the freezer because of the

amount of weight that had to be lifted while working in the freezer. In addition, he explained

that the temperature in the freezer caused him to shiver which, in turn, caused his back

muscles to tense up and aggravate his back injury.

¶ 29 In mid-December, Underwood finally began relieving Holland, but only by assisting the

material handlers, Pietrantoni and Owens, with unloading goods from semitrucks into the

depot’s freezer when semitruck deliveries arrived at the depot. Semitruck deliveries arrived,

on average, every eighth day. Holland had to continue performing all of the other tasks

required of a facility supervisor, including all of the other activities that involved repetitive

bending, twisting, prolonged standing, and lifting over 25 pounds. As a result, Holland’s

work-related back injury did not get any better after Underwood began helping on the days

the semitrucks made deliveries. Also in mid-December, Holland called Bruns for

authorization for the physical therapy that Dr. Vaught had prescribed, but he did not receive

an immediate authorization for the physical therapy. Therefore, no physical therapy

appointments were made at that time.

¶ 30 Near the end of December 2008, Schwan’s district general manager, Wolfenbarger, had

determined that Underwood was unable to perform the duties of the location general manager

at the West Frankfort depot. Accordingly, Wolfenbarger removed Underwood from that

position and reassigned him to a new position as a Schwan’s route salesman in Indiana.

There was no time gap between Underwood’s reassignment of positions. As soon as

Wolfenbarger removed Underwood from the location general manager position, Underwood

immediately began his new position as a route salesman.

¶ 31 In January 2009, Wolfenbarger assigned Gary Young to serve as the location general

manager at the West Frankfort facility. Young testified that when Wolfenbarger assigned him

to the West Frankfort facility, he did not mention any issues with respect to Holland’s job

performance. After Young began working as the location general manager at the West

Frankfort facility, Holland’s duties did not change. He informed Young of his job restrictions

and that Underwood had been helping with the unloading of semitrucks. When he arrived,

Young also began helping with the unloading of semitrucks on delivery days, but Holland

had to continue performing all of the other duties of a facility supervisor. Young testified that

he helped unload semitrucks on delivery days the entire time Holland was the facility

supervisor.

¶ 32 At the trial, Young acknowledged that it was his responsibility to see that Holland was

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not assigned duties outside his medical restrictions. However, he testified that he was not

present at the depot at night when Holland worked to ensure that he did not exceed the

restrictions. He also testified that one of the material handlers, Owens, was injured in January

and in February, and Schwan’s had to hire temporary help. Holland testified that Schwan’s

did not approve any extra help at the depot until two weeks after Owens went on light duty.

¶ 33 By mid-January, Holland still had not received the authorization that he requested from

Bruns for him to attend physical therapy. Around January 14, 2009, Holland received a

telephone call from Joan Kantor, who was the SRS workers’ compensation adjuster who was

handling his claim on behalf of Hartford. Kantor asked Holland about his physical therapy.

Holland told Kantor that he had not yet received any authorization for physical therapy. In

addition, he informed Kantor that his ability to attend physical therapy was limited at that

point in time because, the week before, one of his material handlers, Owens, was injured and

was on leave which left only him and Pietrantoni to operate the West Frankfort depot.

¶ 34 When Bruns later learned from Kantor that Holland had not attended any physical

therapy, she contacted his treating physician, Dr. Vaught, without Holland’s knowledge, and

attempted to convince the doctor to release Holland back to work full duty on the basis that

he had not followed through with the prescribed physical therapy. Dr. Vaught rejected this

request and told Bruns that he would not release Holland to work full duty without

conducting a reassessment of his injuries. On January 16, 2009, Bruns sent an e-mail to

Holland concerning his failure to attend physical therapy. She told Holland in her e-mail that

his failure to attend physical therapy was unacceptable and that he should follow up with his

doctor “ASAP.”

¶ 35 Holland responded to Bruns’s e-mail on the same day. He told Bruns that he would

follow up with his doctor right away, but that his work and home life did not leave time for

physical therapy. He noted that he was down to one material handler and that he would not

be getting any help “during the regular load week, just the semi, while he is gone.” He

believed that Pietrantoni would quit if he was left to handle all of the duties by himself in

order to accommodate Holland’s physical therapy. Holland also wrote, “Doing my job and

supporting my coworkers and the drivers here is very important to me and that is why I have

continued to work during this injury.” He added, “if you have another solution, I would be

happy to implement it.”

¶ 36 Bruns did not respond with “another solution” to accommodate physical therapy. Instead,

the district general manager, Wolfenbarger, sent Holland and Bruns an e-mail that same day

wanting to know what physical therapy appointments Holland had missed. He expressly

questioned whether Owens’ injury could have caused Holland to miss any physical therapy

appointments. In the e-mail, Wolfenbarger told Bruns to “[c]heck the date and time of the

appointment and correspond it with the [material handler’s] injury.” Wolfenbarger concluded

his e-mail by chastising Holland as follows: “Missing [physical therapy appointments] that

are usually scheduled after 8:00 a.m. should never be blamed on work hours that do not

interfere.”

¶ 37 Holland, however, explained to the jury that he had not missed any physical therapy

appointments. Because physical therapy had not been authorized, no physical therapy

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appointments had been made. In addition, Holland disagreed with Wolfenbarger’s statement

that his work was irrelevant because physical therapy appointments were usually after 8 a.m.

He explained to the jury that when he got off work, usually after 10 a.m., he was responsible

for taking care of his son the rest of the day and later had to pick up his daughter from grade

school. He was not able to sleep until his wife got home from work around 5:30 p.m. or 6:30

p.m.

¶ 38 On January 26, 2009, Holland followed up with Dr. Vaught, and he apparently agreed

that Holland’s work schedule was relevant to his physical therapy. Dr. Vaught modified

Holland’s job restrictions so that he was not to work more than six hours on the days he had

physical therapy appointments. Dr. Vaught wanted the claimant to be home by 5 a.m. on the

days that he had physical therapy so he could get some sleep before his appointments. Dr.

Vaught also prescribed an injection, a left L4-L5 facet block, for Holland’s back pain.

¶ 39 Holland testified that immediately after the January 26, 2009, appointment with Dr.

Vaught, he set up appointments for the physical therapy and the injections. However, when

he discussed Dr. Vaught’s modifications of his job restrictions, Young did not agree to any

change in his work schedule to accommodate his physical therapy appointments.

¶ 40 The day after Holland’s follow up appointment with Dr. Vaught, January 27, 2009, Bruns

noted the new work restrictions in Holland’s leave-of-absence file, and she contacted Kantor

over the telephone. In her file, Kantor noted the telephone call from Bruns as follows: “Rcvd

call from eva, she just rcvd note from [physician’s assistant] at dr ofc, that gives ee even

more restrictions than he had before, saying he can only work 6 hours on days he has pt.

restricts lifting etc. it is time for [an independent medical examination]. ee has been on [light

duty] for over 150 days & he knows his head is on the chopping block.” Bruns also sent an

e-mail to Young outlining Holland’s new work restrictions.

¶ 41 That same day, January 27, 2009, Wolfenbarger contacted one of Schwan’s human

resource generalists, Daryl Overstreet, to find out whether Holland had exhausted his FMLA

leave. As a result of his conversation, Overstreet sent an e-mail to Schwan’s leave-of-absence

administrator, Connie Litchtsinn, asking her if she could verify if Holland had “exhausted

his FMLA.” Overstreet added, “Wolfenbarger has a similar situation with Chad Otto, [and]

wishes to replace [Holland] if possible.” At the trial, Wolfenbarger testified that Chad Otto

was an employee in Indiana who had hurt his shoulder in an accident that was unrelated to

work and was on medical leave. Young testified that he had no knowledge of Wolfenbarger’s

inquiries to Overstreet on January 27 or that they were otherwise discussing Holland in

January 2009.

¶ 42 Because Litchtsinn only managed leaves of absence that were unrelated to occupational

injuries, she directed Overstreet to ask Bruns about Holland’s FMLA leave because he was

on “work comp” leave. The next day, Bruns sent an e-mail to Overstreet stating that because

Holland’s “FMLA ran out last year, we should be OK to replace Mr. Holland’s position.”

She added that an independent medical examination (IME) of Holland was being set up “to

address all the issues that seem to prevent his return to work full duty.” On January 29, 2009,

Kantor sent Holland a letter informing him that she had scheduled an IME to be conducted

by Dr. Hayward on February 13, 2009.

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¶ 43 On February 5, 2009, the organization that handled FMLA leaves on behalf of Schwan’s,

The Reed Group, confirmed to Bruns and Overstreet that Holland had exhausted his FMLA

leave as of October 26, 2008. On February 6, 2009, The Reed Group then sent out an

“exhaustion letter” to inform Holland that his FMLA leave had expired back on October 26,

2008. Upon receiving the confirmation concerning Holland’s exhaustion of FMLA leave,

Overstreet sent an e-mail to Bruns on February 6, 2009, inquiring whether Holland’s IME

had been completed “to address the issues preventing his return to full duty.”

¶ 44 On the same day, February 6, 2009, Wolfenbarger completed Holland’s annual review

for 2008. Overstreet could not remember whether he told Wolfenbarger that he had received

confirmation that Holland’s FMLA leave had been exhausted, and Wolfenbarger denied

knowing that Holland’s FMLA leave was exhausted when he completed the 2008 annual

review. Nonetheless, on February 6, 2009, Bruns notified Young that a letter had been sent

out to Holland notifying him that his FMLA leave had been exhausted.

¶ 45 Wolfenbarger testified that he had to fill out Holland’s 2008 evaluation because

Underwood had been Holland’s immediate supervisor for most of 2008, but he was no longer

the location general manager of the West Frankfort facility. Holland, however, testified that

Wolfenbarger did not have an opportunity to observe his work duties in 2008. In addition,

as noted above, previous evaluations were not completed until March and not until the

employee had submitted a self-critique sheet to his supervisor. Wolfenbarger not only

completed Holland’s 2008 evaluation a month early, but he also completed it without giving

Holland an opportunity to submit a self-critique sheet.

¶ 46 In his evaluation, Wolfenbarger rated Holland’s overall performance at the lowest rating

possible: “does not meet expectations.” Wolfenbarger did not go over the evaluation with

Holland as was the customary practice for end-of-year evaluations. Instead, he sent it to the

West Frankfort depot, where Young handed it to Holland for him to sign. Holland signed it

on February 11, 2009, the day before he was scheduled to leave for a one-week vacation. He

wrote in the employee comment section as follows:

“I am personally very disappointed in this evaluation particularly those unobserved areas

of performance related to People Development, Strategy [and] Planning [and] Quality of

work. I have spoken to Gary Young [and] asked him to work with me on a

comprehensive plan to improve overall performance [and] meet Company established

sales related goals.” (Emphasis in original.)

¶ 47 Wolfenbarger initially told the jury that he had prepared the evaluation on February 6,

then sat down with Holland at the West Frankfort depot and personally went over the

evaluation with him on February 11, when Holland signed it. He later recanted that testimony

and admitted that he never met with Holland to go over the evaluation. Instead, Holland met

with Young to sign the 2008 evaluation on the morning of February 11 after he worked his

shift that night. Young then faxed the signed evaluation to Wolfenbarger, who then signed

the faxed copy with Holland’s signature. Holland testified that he did not discuss any goals

and objectives for 2009 with anyone during this 2008 evaluation process. The area on the

2008 evaluation form for writing 2009 goals and objectives was left blank by Schwan’s.

¶ 48 At the trial, Wolfenbarger also denied having knowledge of Holland’s workers’

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compensation claim at the time he evaluated Holland’s 2008 performance. However, as

noted above, in January 2009, one month prior to Holland’s evaluation, Wolfenbarger had

chastised Holland when he mistakenly believed that Holland had missed physical therapy

appointments. The record also establishes that on February 9, 2009, the day of

Wolfenbarger’s evaluation, Bruns informed Young by e-mail that a letter had been sent to

Holland to inform him that his FMLA leave had expired.

¶ 49 As noted above, in late January 2009, Kantor sent Holland a letter informing of him of

the IME scheduled for February 13, 2009. Holland testified that he was receiving

correspondence related to his work accident every couple of days, primarily from SRS.

Because of the volume of the correspondence, he lost interest in opening and examining each

correspondence and began stacking the unopened letters in a pile. In addition, in early

February 2009, during the time that he would have received Kantor’s letter, he was preparing

to leave town for his vacation. He was scheduled to be off work from February 12 to

February 19, 2009. Holland received Kantor’s letter concerning the scheduled IME before

he left for his vacation, but he put the unopened letter on top of the pile of the other

unopened letters. He left for his vacation without knowing that the IME had been scheduled

during his vacation. As a result, Holland missed the appointment for the IME.

¶ 50 On the same day of the missed appointment, Bruns, Kantor, Overstreet, Wolfenbarger,

and Young all learned that Holland had missed the IME appointment. Overstreet sent an e-

mail to Young and Wolfenbarger stating that he wanted to “know asap why [Holland] did

not show up for the appointment.” On the same day, February 13, Kantor sent a letter to

Holland that informed him that all further medical treatments and benefits under his workers’

compensation claim were being denied and that Schwan’s was no longer required to

accommodate any job restrictions imposed by his treating doctor. Overstreet received a copy

of the letter. On February 14, Young informed Overstreet and Wolfenbarger that Holland was

on vacation as of February 12 and would be back on February 19 but that he should have

made appropriate arrangements.

¶ 51 When Holland returned from his vacation, he went through his mail, opened Kantor’s

February 13, 2009, letter, and learned for the first time that he had missed the IME

appointment. He then opened other envelopes that he had received from SRS and discovered

Kantor’s January 29, 2009, letter informing him of the appointment. Overstreet and Young

spoke with Holland over the telephone and learned that there had been a miscommunication

between Holland and Kantor. Young told Holland that he was required to come into work

and report for full duty or he would have to sign a letter of resignation. Holland advised

Young of the status of his medical treatments and told him that he was not going to risk

further injury to his back.

¶ 52 Holland called Bruns Monday morning, February 23, 2009, and explained to her why he

had missed the appointment. Bruns directed Holland to speak with Kantor to see if his IME

could be rescheduled. At that time, his scheduled injections prescribed by Dr. Vaught were

canceled because Kantor’s letter informed him that no further medical benefits would be

covered under his workers’ compensation claim. On February 24, 2009, Kantor told Holland

that she would reschedule his IME and would authorize his injections but that Schwan’s did

not have to accommodate his work restrictions.

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¶ 53 On March 2, 2009, Bonita Skuya replaced Bruns as the Shared Services’ workers’

compensation specialist handling Holland’s claim.

¶ 54 The IME was rescheduled for March 9, 2009, and Holland attempted to go to the IME

on that day, but the appointment had to be rescheduled again to March 17, 2009, because the

IME doctor had a family emergency. On March 20, 2009, Skuya received the report from the

IME. Schwan’s IME doctor agreed with Holland’s treating physicians and believed that all

of the recommended treatments were appropriate. He believed that both epidural steroid

injections and physical therapy were necessary for treatment of Holland’s work-related

injury. In answering the question of whether Holland could return to work full duty, the IME

doctor increased his job restrictions by restricting him from lifting anything over 15 pounds.

Although the doctor said he could work in a cold environment, he continued the restrictions

of no repetitive bending, stooping, and twisting. He believed that Holland would be able to

return to full duty on the completion of the injections and the physical therapy.

¶ 55 Skuya forwarded the new restrictions to Young and Wolfenbarger in an e-mail dated

March 23, 2009. Skuya wrote in her e-mail that, in her opinion, since Holland had said his

work schedule was interfering with his ability to complete physical therapy, perhaps they

should consider taking him totally off of work until he completed his therapy. She asked

Young to advise on whether he agreed or whether they should allow Holland another 30 days

in the TAD program. Young told Skuya not to take Holland off work because he needed the

help and to extend Holland’s TAD program another 30 days.

¶ 56 On March 24, 2009, Skuya sent a letter to Holland notifying him that, in light of the IME,

Schwan’s had granted him one final 30-day extension in the TAD program which would end

on April 24, 2009. Skuya sent a copy of the letter to Kantor in an e-mail dated March 24,

2009. In her e-mail, Skuya wrote as follows: “I understand we cannot terminate him, just

using this as a way to let him know he cannot continue along his same path.” On March 31,

2009, after receiving her letter, Holland e-mailed Skuya because he had a question whether

an L4-L5 facet block had been approved or whether an epidural steroid injection had been

approved. He informed Skuya that his next doctor’s appointment was scheduled for April 2,

2009.

¶ 57 On April 1, 2009, Skuya again e-mailed Kantor and reiterated that she had advised

Holland that he had until April 21, 2009, to complete his physical therapy and return to work

full time. Skuya asked Kantor in her e-mail, “How many times does he get to postpone this

treatment before we say enough is enough?” Kantor responded that he was having his

injection on April 2 and was to confirm where he was going to perform his physical therapy.

She added: “If he continues to be non-compliant with the pt recommended both by his

[treating doctor] and our ime [doctor], then we can try to deny further [treatment]. This is an

Illinois claim & if he gets an atty, we will have a continued fight on our hands, but it will be

his own fault.”

¶ 58 Holland subsequently received his first epidural steroid injection on April 9, 2009, and

received the second two weeks later. In addition, he started his physical therapy, which was

scheduled to last through April 2009. Throughout April 2009, Holland did not miss any of

his scheduled physical therapy appointments, and he complied with all of his treatment

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requirements. Skuya testified that she had no concerns about Holland’s compliance with his

treatment in April 2009, and she believed that the doctor would release Holland back to full

duty on April 28, 2009. During this period of time, however, Schwan’s required Holland to

continue working beyond his medical restrictions even though it claimed to have put him in

its TAD program.

¶ 59 Holland saw his treating physician on April 28, 2009. Instead of releasing Holland to full

duty, the doctor took him completely off work until May 19, 2009, so that he could receive

more aggressive physical therapy. The doctor believed that Holland was not healing, and the

doctor was concerned that he was not able to sleep without medication. The treating

physician’s new restrictions were not well received by Schwan’s.

¶ 60 Holland sent a text message to Young to inform him of the doctor’s new restrictions, and

Young e-mailed the new restrictions to Skuya. Wolfenbarger was copied in on Young’s e-

mail to Skuya, and Young asked in the e-mail: “Our [sic] we going to now ask him to step

aside from Facility Supervisor or not?” The next day, Skuya sent a response e-mail to Young

and copied Wolfenbarger and Overstreet in on the e-mail. She advised Young that if he chose

to replace Holland, he should work with Overstreet. She also advised Overstreet that since

Holland had exhausted his FMLA protection, they were “safe to replace him.” She

concluded, “I find it extremely interesting that he has been taken completely off of work,

when we were anticipating full duty release.”

¶ 61 The next day, Skuya sent Kantor an e-mail in which she stated: “[M]y gut tells me to do

some surveillance on him. What do you think?” In addition, Overstreet e-mailed Skuya that

stated, “I am most certain from earlier conversations with [Young] that given the

circumstances, he will probably wish to replace [Holland].” He asked Skuya, “Since you

indicated [Holland] has exhausted his FMLA, if [Young] were to replace him, is this a

situation where upon full duty release he could be offered whatever [Young] has available

& have the option of securing another position within the company within 30 days?” In her

response e-mail, Skuya wrote: “You are correct. If he is replaced as FS, he will be offered

whatever position is available when he is returned back to full duty work.” She speculated

that Holland probably “knew it was coming” which was why “he is suddenly unable to work

in any capacity.”

¶ 62 On April 30, 2009, Kantor faxed the physician’s restrictions to Skuya. The physician

believed that Holland could return to full duty at the end of the aggressive physical therapy.

Skuya forwarded the doctor’s report to Young and Overstreet. Young sent the following

response to Skuya and copied Wolfenbarger on his response: “The problem here is reliability.

He has been playing this game for quite some time. I am looking for a long-term solution to

this problem, not a short-term wait and see. Please advise.” Skuya responded as follows: “I

know you have been patiently waiting for him to recover. I would recommend you move

forward doing what’s best for your business.” Young then forwarded Skuya’s e-mail to

Overstreet and Wolfenbarger and recommended that they remove Holland as the facility

supervisor. Overstreet responded that because Holland had exhausted his FMLA, he agreed

with Skuya to replace Holland as the facility supervisor based on business needs.

¶ 63 Skuya e-mailed Overstreet on April 30, 2009, and told him that she did not have the

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authority to change an employee’s status, but that was something that Young would have to

work out with payroll. She stated that the person taking over the position should be given the

facility supervisor title and that Holland would then be changed to an “MH title.”

¶ 64 In preparing the letter to send to Holland to notify him that his position was being

reassigned to someone else, on May 7, 2009, Overstreet e-mailed Skuya and asked if the 30-

day period that Holland had “to apply for another position would normally begin from the

date he went out again for physical therapy, or the date he’s able to return when physical

therapy was completed, or the date we made the decision to reassign his position.” Skuya

responded that, in her opinion, they could not start the 30 days until he is capable of applying

for and receiving a new position. Therefore, the 30 days should begin to run when he is

released to return to full-duty work. At the trial, Skuya explained that if the 30 days began

to run before he was off of work restrictions, that would lessen his chances of obtaining

another job.

¶ 65 Overstreet e-mailed Skuya again on May 11, 2009, asking her the tentative date on which

the 30-day period would begin to run. On May 12, 2009, Skuya e-mailed Overstreet that it

would be hard to determine an appropriate date for full-duty release to return to work. She

said that she would notify him when Holland was released to full-duty work so he could

begin his notification process.

¶ 66 On May 15, 2009, Kantor requested authority from Skuya to increase the reserve amount

necessary for handling Holland’s claim. Because Holland’s doctor had taken him off work

for aggressive physical therapy, Schwan’s was required to begin paying him temporary total

disability (TTD) benefits. Kantor noted in her e-mail to Skuya, “since you have asked him

to step aside as facility supervisor, I do anticipate he will retain an attorney.” Skuya initially

approved the reserve increase. However, on May 18, 2009, Skuya e-mailed Kantor that she

had confirmed that Holland was entitled to 120 days of salary continuation while he was in

physical therapy. Therefore, Skuya wrote, even though he was not working, he would be

receiving his full salary until August 29, 2009. According to Skuya, the TTD check issued

on May 15 would be an overpayment, and she asked Kantor if she could put a stop-payment

on the check. In response, Kantor said that she informed Holland that he would receive a

salary continuation and asked him to void the TTD benefit check from SRS. Holland voided

the check as Kantor asked him to do. However, he never received a salary continuation

through August 2009 and never received any TTD benefits when he was off work for the

aggressive physical therapy program.

¶ 67 A note from Holland’s physician dated May 19, 2009, stated that he was doing very well

and that he would be ready to return to work full duty on Monday, May 25, 2009.

¶ 68 On May 19, 2009, Skuya sent Kantor an e-mail as follows: “Get ready for a battle. His

position has been reassigned, and he will be given 30 days to accept another position or he

will be terminated.” Kantor responded that it looked like he should return to work on May

25, 2009, and Skuya replied: “Right, but there is no position for him there. He has to apply

for, and receive, another position elsewhere, or they will process his termination.” Skuya

wanted to know if Holland would be entitled to a continuation of his salary during the 30

days while he looked for another job. She also learned from Schwan’s human resources

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department that Holland would not be entitled to a continuation of his salary after he was

returned to full duty on May 25, 2009.

¶ 69 Also on May 19, 2009, Skuya sent an e-mail to Young and Overstreet notifying them that

Holland would be eligible to return to work on Monday, May 25, 2009, and that Holland had

30 days from May 25, 2009, to find another position within the company or be terminated.

Overstreet advised that he was preparing the notification letter to send to Holland by certified

mail. He knew at that time that Holland would not be entitled to any salary after May 25,

2009.

¶ 70 On May 20, 2009, Overstreet sent the notification letter to Holland concerning the

reassignment of his facility supervisor position. The letter states as follows:

“This letter will serve as formal notice that based on your performance and a record

of unreliability, you no longer qualify for the position of Facility Supervisor at the

Schwan’s Home Service West Frankfort, IL depot for the reason of Unable to perform

essential job functions[.] Upon your full duty release to work on May 25th, 2009, you

will have a period of 30 days (5/25/09 to 6/23/09) to apply for other positions as they are

posted.

If you should not find another position by your job elimination date, your

employment will be terminated. ***

It is my sincere hope that you will take advantage of the opportunity to pursue other

employment opportunities within Schwan’s Home Service, Inc. or another subsidiary of

The Schwan Food Company. Feel free to contact me *** if you have any further

questions.”

¶ 71 Wolfenbarger and Crider made the decision to remove Holland as the facility supervisor.

Overstreet testified that back on May 5, 2009, Schwan’s regional manager, Crider, told him

that he had approved a new material handler position for Holland at the West Frankfort

facility. Crider was the regional manager and was responsible for approving all operations

positions and hours allotted. It was a special position made available only to Holland and was

never posted as a job opening. According to Overstreet, Crider approved it as a full-time

position, 40 hours a week. However, at the trial, Schwan’s did not produce any internal e-

mails, communications, an “Internal Offer Letter,” or other evidence to show that Crider

created a material handler position for Holland in early May 2009. It attempted to prove this

fact to the jury only through Overstreet’s testimony at the trial.

¶ 72 However, Overstreet’s May 20, 2009, letter made no mention of a material handler

position being available to Holland. Instead, the letter instructed him to apply for whatever

positions might be available as posted. Overstreet testified at the trial that the letter was the

start of an “interactive process” that was an exchange of communications related to the

plaintiff returning to work.

¶ 73 Young and Skuya both received a copy of the notification letter. On May 22, 2009, Skuya

e-mailed Young to ask him “if he even has any MH positions open.” Also on May 22, 2009,

Kantor generated a workers’ compensation status report concerning Holland’s claim. With

respect to Holland’s return-to-work status, she wrote in the report that his job had been

reassigned and that when he reached maximum medical improvement, he will have to

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reapply for a job, possibly at a new location. Under the “Disposition Plan,” Kantor wrote that

she anticipated that Holland would obtain an attorney due to his termination or lack of

position. At this time, Skuya knew that if a job was no longer available to Holland when he

was released back to full duty, he would be entitled to TTD benefits.

¶ 74 Holland received Overstreet’s letter on May 22, 2009, and called Overstreet later that

day. Holland’s notes from his telephone conversation indicate that Overstreet told Holland

that there was a material handler position open at the West Frankfort facility. Holland

testified, however, that Overstreet said that the only way he could return to employment with

Schwan’s was to reapply for another position and that he was not to return to work until he

had been accepted by Schwan’s and the location general manager. Holland’s notes from that

conversation state, “Do not return until you apply for MH position [and] are accepted by

Schwan’s/LGM.” Holland’s notes further state that he must contact Young “on Monday 25

May to get further info” when he returns from vacation.

¶ 75 Holland testified that he did not believe that his conversation with Overstreet was a job

offer because he had not received a formal internal offer from Schwan’s. Holland also

testified that he knew from his personal experience at the West Frankfort depot that another

material handler position was not needed there. He testified that as the facility supervisor,

he had been “berated” by Crider for giving the two material handlers already assigned to the

depot 40-hour workweeks and that he did not have enough hours to give two of them a 40-

hour week. Based on this experience, he did not believe that Schwan’s was “going to be able

to employ another material handler, certainly not a full time material handler.”

¶ 76 Holland called Overstreet a second time on May 22 to discuss a continuation of his salary

during the 30-day period he was given to find another job. Overstreet told him that his

supervisor, Jeff Booth, had not approved a salary continuation during the 30-day period. As

noted above, however, Kantor had asked Holland to void his May 2009 TTD disability

benefits check and told him that he would receive a salary continuation through August 19,

2009. On May 26, 2009, Holland voided the TTD benefits check and sent it back to Kantor

as she requested.

¶ 77 The next day, May 27, 2009, Overstreet called Holland and told him that Schwan’s was

denying him any salary continuation during the 30-day period. Overstreet again told Holland

to contact Young about the material handler position. Holland asked about his health benefits

during the 30-day period, and Overstreet said he would check on that for him.

¶ 78 Also, on May 27, 2009, Skuya sent another e-mail to Young, with a copy to Overstreet,

again inquiring whether there were any positions available for Holland and, if so, whether

they offered them to him. Young responded that he had not had any contact with Holland,

and he further wrote, “At this point in time I have no available MH positions.” The record

does not contain any response e-mail from Overstreet clarifying that Crider had approved a

material handler position especially for Holland earlier that month. At the trial, Young

testified that he was unaware that Schwan’s had created a material handler position for

Holland.

¶ 79 Holland testified that on May 27, 2009, he checked Schwan’s website, described above,

where Schwan’s posted internal job openings and where employees could go to apply for

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internal job transfers. The website listed a material handler position, but he could not apply

for it and could not obtain any information about it online. At 7:55 p.m. that evening, he

called Young to inquire about the position, and Young informed him that he was not sure

that the position existed and would have to call him back on May 28, 2009. On May 28,

2009, Young called Holland back and informed him that there was a material handler

position open at the West Frankfort depot that was being offered only to him.

¶ 80 On June 2, 2009, Skuya received notice that Holland had retained a workers’

compensation attorney. In forwarding the attorney’s information to Kantor, Skuya indicated

that she had received an e-mail from Young that Holland had contacted him but had made

no effort to return to work. Skuya asked Kantor, “If there is a position available and we offer

that position to him in writing and he does not accept, does that lessen the amount of wage

differential he will be entitled to?” Kantor replied: “Yes. Offer away.”

¶ 81 On June 3, 2009, Skuya called Young, and he told her about the material handler position

that was created for Holland and that Holland was aware of the position. Holland, however,

had not accepted or declined the offer. Skuya then spoke with Overstreet, and he agreed that

a letter should be sent so they had written proof that a position was offered to Holland. Skuya

agreed to send the letter. Skuya then prepared a letter to Holland and sent it to Kantor and

Overstreet for their review before she sent it to Holland. She testified that she sent the letter

to Kantor so that Kantor knew that Holland had a job to return to for purposes of Schwan’s

liability for TTD benefits.

¶ 82 Skuya’s letter to Holland was dated June 4, 2009, and it stated as follows:

“You were released by your treating physician to return to full duty work effective

May 25, 2009. At that time, you were notified that your pre-injury position had been

reassigned and you were given 30 days to obtain another position within the company.

I understand there is a Material Handler I position available to you effective

immediately. I have been advised that you are aware of this position, however you have

not yet returned to work. Please contact your LGM, Gary Young, regarding this position

and your return to work.

Please be advised, failure to accept this position and return to work by June 23,

2009[,] may be considered your voluntary resignation and your employment may be

terminated effective June 23, 2009.

If you have any questions regarding this letter, please contact me ***.”

¶ 83 On June 23, 2009, Skuya asked Young if Holland had accepted the material handler

position, and Young responded that he had not heard from Holland and assumed he was not

taking the position. Skuya then asked Overstreet if he was in agreement with processing the

termination on June 25.

¶ 84 On June 25, 2009, Skuya sent an e-mail to Kantor indicating that Holland had not

returned to work or called anyone about his return to work and that she would like to proceed

with his termination of employment. She asked Kantor to verify that she was in agreement

that Schwan’s would deny any further benefits as a result of his abandoning his employment.

Overstreet agreed that they should proceed with the termination because Holland had not

accepted the material handler position or accepted another position.

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¶ 85 Kantor responded that she needed to verify that Holland was at maximum medical

improvement (MMI) and that Schwan’s had to pay his medical expenses through MMI.

Kantor asked Skuya to wait one day so that they could determine the position of Holland’s

workers’ compensation attorney. Skuya agreed to wait until Kantor could follow up with

Holland’s attorney. On June 30, 2009, Skuya followed up with Kantor to find out Holland’s

MMI status. Kantor advised Skuya to send Holland a letter stating that if he did not respond

to the job offer by one week from the date of the letter, she would consider it a voluntary

resignation and would process his termination.

¶ 86 Skuya advised Young and Overstreet that she was sending the letter at the request of

Kantor and that if Holland did not report for duty by July 6, she would process his

termination. Skuya testified that Holland’s termination was delayed because Kantor wanted

to make sure that Holland’s attorney understood that Schwan’s was offering him a job. On

July 1, 2009, Skuya sent the letter to Holland and his attorney giving him a “final offer of

employment.” She wrote that the position would remain available to him until July 6, 2009,

and that she would terminate him effective July 6, 2009, if he did not accept the position.

Kantor also received a copy of the letter. On July 7, 2009, Skuya sent a letter to Holland

notifying him that he was terminated effective that day due to his failure to return to work.

Skuya sent a copy of the letter to Young, Overstreet, and Kantor.

¶ 87 Schwan’s never filled any additional material handler position at the West Frankfort

depot that was purportedly offered to Holland. Crider eliminated the hours that he had

allotted for the third material handler position at the depot.

¶ 88 On November 17, 2009, Holland filed his complaint against Schwan’s,1 alleging a cause

of action for retaliatory discharge. At the conclusion of the seven-day trial, the jury found in

favor of Holland and assessed the following damages: $135,200 for the value of past salaries

and benefits lost, $125,200 for the present cash value of the salaries and benefits reasonably

certain to be lost in the future, and $400,000 for emotional distress, impairment of reputation,

personal humiliation, and embarrassment. In addition, the jury assessed punitive damages

in the amount of $3.6 million. The circuit court entered a judgment on the jury’s verdict.

Schwan’s now appeals the circuit court’s judgment.

¶ 89 DISCUSSION

¶ 90 I

¶ 91 Whether Schwan’s Terminated Holland’s Employment

¶ 92 One of the central, disputed factual issues between Holland and Schwan’s concerns

whether Holland resigned from his employment or whether Schwan’s terminated his

employment. On appeal, Schwan’s argues that the trial court should not have submitted this

issue for the jury to decide because the evidence conclusively established that Holland

resigned and was not terminated, and therefore, as a matter of law, he could not prevail on

1

The complaint also named The Schwan Food Company, Schwan’s Shared Services, LLC,

and Gary Young as defendants. These defendants were voluntarily dismissed.

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his retaliatory discharge claim.2 We disagree.

¶ 93 Despite the extensive evidence the parties presented during the seven-day jury trial, the

facts supporting the jury’s finding on the termination element of Holland’s claim are simple

and straightforward. Prior to May 25, 2009, Holland was temporarily and totally disabled as

the result of a workplace injury when his doctor completely removed him off work so he

could undergo aggressive physical therapy. At this time, under the Act, Schwan’s was

obligated to begin paying Holland TTD benefits. Holland’s doctor reported that he would

reach MMI and would be ready to return to work full duty on May 25, 2009, after completion

of the aggressive physical therapy program. On May 22, 2009, however, days before he was

to return to work, Holland received a letter from Overstreet informing him for the first time

that he no longer qualified for his job as the facility supervisor at Schwan’s West Frankfort

depot.

¶ 94 Overstreet claimed at the trial that he knew at that time that a material handler position

had been created specifically for Holland. The jury, however, was not obligated to believe

this testimony because, in his letter, Overstreet did not inform Holland that there was a

position available for him, and only him, at the West Frankfort depot when he was released

for full duty. Instead, Overstreet’s letter informed Holland that he must apply for “other

positions as they are posted.” The jury was entitled to conclude that if Schwan’s had created

a job specifically for Holland, as Overstreet claimed in his testimony, then there would be

no need to require him to apply for “other positions as they are posted.” The jury could also

find it significant that the person directing Holland to apply for “other positions as they are

posted” is one of Schwan’s human resources generalists who is knowledgeable about

Schwan’s human resource procedures. This evidence alone was enough for the jury to

conclude that Holland had no job to report to on May 25, 2009, and, therefore, had been

terminated as of the day he was released for full-duty work.

¶ 95 Further evidence supports the jury’s finding. The day Holland received Overstreet’s

letter, he called Overstreet to clarify the letter’s meaning. Consistent with the written

language of his letter and contrary to his testimony, Overstreet told Holland that he could not

return to work for Schwan’s until he applied for a new position and that he could not work

until Schwan’s and Young accepted him for a new position. Holland testified that Overstreet

specifically told him not to return to work until he reapplied and was accepted for a new

position. At that time, Holland was not earning any salary or wages. It does not require much

of an inference for the jury to conclude that a person who has no job and no income, and who

must apply for a new job, no longer has an employment relationship with his former

employer.

¶ 96 The evidence was more than sufficient for the jury to find that, as of May 25, 2009,

Holland no longer had an employer/employee relationship with Schwan’s and that any

2

Schwan’s does not challenge the jury’s finding that Holland proved the other elements of

his claim, including proof of Schwan’s motive in terminating his employment, i.e., the jury’s finding

that the termination was because he exercised his right to medical care provided in the Workers’

Compensation Act.

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renewed employment relationship was contingent on uncertain future events, i.e., an

application and acceptance process. Although Overstreet told Holland to contact Young on

May 25 to find out information about a material handler position, Overstreet also specifically

told him not to report to work until he had applied and was accepted for another position.

¶ 97 Schwan’s maintains that the evidence is undisputed that, as of May 25, 2009, a material

handler position was open to Holland and that all Holland had to do was show up at the West

Frankfort depot and start working on May 25, 2009. His refusal to do so, Schwan’s argues,

established his voluntary resignation from employment as a matter of law. Schwan’s

assessment of the evidence is inaccurate.

¶ 98 Overstreet’s May 20, 2009, letter and his subsequent conversation with Holland are

contrary to Schwan’s assertion that the uncontroverted evidence is conclusively in its favor.

The jury was entitled to give significant weight to evidence that Overstreet (Schwan’s human

resources generalist) placed an application and acceptance prerequisite prior to Holland

resuming any future employment relationship with Schwan’s. A reasonable jury could

conclude that, if Schwan’s had created a job that was specially available only to Holland and

no one else, it would not require him to apply and be accepted for the job. The jury weighed

this conflicting evidence and found in favor of Holland.

¶ 99 The jury’s finding on this issue is further supported by additional communications that

took place before and after Overstreet’s May 20, 2009, correspondence. On May 7, 2009,

when Overstreet was preparing the letter, he e-mailed Skuya and asked if the 30-day period

that Holland had “to apply for another position would normally begin from the date he went

out again for physical therapy, or the date he’s able to return when physical therapy was

completed, or the date we made the decision to reassign his position.” (Emphasis added.)

¶ 100 In a separate e-mail chain, on May 19, 2009, Skuya sent Kantor an e-mail as follows:

“Get ready for a battle. His position has been reassigned, and he will be given 30 days to

accept another position or he will be terminated.” Kantor responded that it looked like he

should return to work on May 25, 2009, and Skuya replied: “Right, but there is no position

for him there. He has to apply for, and receive, another position elsewhere, or they will

process his termination.” (Emphases added.)

¶ 101 Two days after Holland’s doctor released him to work full duty, on May 27, 2009, Skuya

sent another e-mail to Young, with a copy to Overstreet, again inquiring whether there was

a position available for Holland and, if so, whether they offered it to him. Young responded

that he had not had any contact with Holland, and he wrote, “At this point in time I have no

available MH positions.” (Emphasis added.) The jury could find it significant that the

evidence did not include a response e-mail from Overstreet clarifying that Crider had

approved a material handler position specifically for Holland.

¶ 102 The jury was entitled to weigh this evidence and conclude that no position was available

for Holland when he was released for full-duty work on May 25, 2009, and that because he

was told he had to apply for and be accepted for a new position, Schwan’s terminated his

employment as of May 25, 2009.

¶ 103 Furthermore, Holland testified that on May 27, 2009, he checked Schwan’s website

where Schwan’s posted internal job openings and where employees could access to apply for

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internal job transfers, but he could not apply for a material handler position and could not

obtain any information about the position on the website, as was Schwan’s usual practice

when a position was available for an internal transfer. At 7:55 p.m. that evening, he called

Young to inquire about the position, and Young informed him that he was not sure that the

position existed and would have to call him back on May 28, 2009.

¶ 104 Although Overstreet testified that the position was always available to Holland, the jury

could find it significant, in assessing his credibility, that he never conveyed that information

to Holland, to Young, to Skuya, or to Kantor at any time prior to May 28, 2009.

¶ 105 Based on this evidence, the jury was not obligated to accept Overstreet’s testimony that

Crider created the position in early May 2009, and it was not obligated to accept Schwan’s

position that on May 25, 2009, all Holland had to do was report to the depot and begin

working as a material handler. The jury, instead, was entitled to conclude that Schwan’s

terminated Holland and required him to reapply and be accepted for a new position before

he would have any further employment relationship with Schwan’s.

¶ 106 As additional support for the jury’s finding, we note that the record includes evidence

from which the jury could have concluded that Schwan’s procedure for internally transferring

an employee from one position to another is through a written internal offer letter. When

asked if an internal offer letter was “the customary way that Schwan’s moved someone from

one position to another,” Holland responded: “That’s true. I had received two of them in my

time at Schwan’s ***.” The record included a copy of the internal offer letter that Holland

received when he was transferred from his manager position to the facility supervisor

position at the West Frankfort depot. The record does not contain a similar internal offer

letter for a transfer of Holland from the facility supervisor position to a material handler

position beginning on May 25, 2009. Instead, the record contains multiple references to an

application and acceptance process that Holland must successfully complete before he could

begin any further employment relationship with Schwan’s. The jury was entitled to find that

Schwan’s could not produce an “Internal Offer Letter” for Holland’s new position because

the position did not exist when he was released to work full duty. Under these facts, the

jury’s finding that Schwan’s terminated Holland’s employment as of May 25, 2009, is

supported by the evidence presented at the trial. Therefore, we cannot overturn the jury’s

finding that Schwan’s terminated Holland’s employment.

¶ 107 We recognize that much of the evidence presented at the trial was disputed, conflicting,

and could support multiple inferences. The jury could have made alternative findings after

weighing the evidence. Schwan’s argument on appeal concerning the evidence relevant to

the discharge element of Holland’s claim is founded on alternative findings that the jury

could have made but did not. Schwan’s urges us to hold that the jury was required to make

factual findings in its favor. Our standard of review does not allow us to usurp the jury’s fact-

finding process when the evidence can be interpreted to support the jury’s findings.

Reasonable minds can differ with respect to the inferences and conclusions that can be drawn

from the evidence presented at the trial concerning the discharge element of Holland’s claim.

Accordingly, we decline Schwan’s invitation to set aside the jury’s factual finding that

Schwan’s terminated Holland’s employment.

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¶ 108 II

¶ 109 Judicial Estoppel and Standing

¶ 110 Schwan’s next argument is that the circuit court should have granted its motion for a

judgment n.o.v. under the judicial estoppel doctrine and because Holland lacked standing to

pursue his claim. Specifically, Schwan’s argues that Holland filed a bankruptcy petition, but

he did not disclose his action against it as a bankruptcy asset despite his affirmative duty to

do so. Schwan’s concludes that Holland, therefore, is now estopped from asserting his claim.

Schwan’s also argues, alternatively, that Holland did not have standing to file his claim

because the claim belonged to the bankruptcy trustee. We disagree with Schwan’s arguments.

¶ 111 (a)

¶ 112 Judicial Estoppel

¶ 113 Under the doctrine of judicial estoppel, a party who takes a particular position in a legal

proceeding is estopped from taking a contrary position in a subsequent legal proceeding. Moy

v. Ng, 371 Ill. App. 3d 957, 962, 864 N.E.2d 752, 756 (2007). Five factors are required for

the doctrine to apply: (1) a party must have taken two positions, (2) the party must have taken

the two positions in judicial proceedings, (3) the positions must be given under oath, (4) the

party must have successfully maintained the first position and received some benefit thereby,

and (5) the two positions must be “totally inconsistent.” (Internal quotation marks omitted.)

Parisi v. Jenkins, 236 Ill. App. 3d 42, 53-54, 603 N.E.2d 566, 573-74 (1992). The purpose

of the doctrine is to prevent a litigant from “playing fast and loose with the courts” by

intentionally taking contradictory positions in order to obtain an unfair advantage. (Internal

quotation marks omitted.) Moy, 371 Ill. App. 3d at 963, 864 N.E.2d at 757. It is a flexible

doctrine that should not be used when it would result in an injustice. Ceres Terminals, Inc.

v. Chicago City Bank & Trust Co., 259 Ill. App. 3d 836, 850-51, 635 N.E.2d 485, 495

(1994).

¶ 114 The trial court’s determination of whether to apply the judicial estoppel doctrine is

reviewed under the abuse of discretion standard. Id. An abuse of discretion occurs only when

the trial court’s decision is arbitrary, fanciful, or unreasonable or where no reasonable person

would take the view adopted by the trial court. McGill v. Garza, 378 Ill. App. 3d 73, 75, 881

N.E.2d 419, 422 (2007).

¶ 115 Schwan’s argues that the court should apply the judicial estoppel doctrine to prevent

Holland from reaping the benefit of taking inconsistent positions in his bankruptcy case and

in the present case. We disagree.

¶ 116 On August 18, 2008, Holland filed for bankruptcy under chapter 13 of the Bankruptcy

Code (11 U.S.C. §§ 1301 to 1330 (2006)). When a chapter 13 bankruptcy petition is filed,

a new bankruptcy “estate” is created, and the estate is made up of all of the debtor’s property

at the time the case commences. In re DiGregorio, 458 B.R. 436, 442 (Bankr. N.D. Ill.

2011). The assets of the bankruptcy estate include all legal or equitable interests of the debtor

in property as of the commencement of the case. 11 U.S.C. § 541(a)(1) (2006). The assets

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of the bankruptcy estate include the debtor’s unliquidated lawsuits. Dailey v. Smith, 292 Ill.

App. 3d 22, 24-25, 684 N.E.2d 991, 993 (1997).

¶ 117 At the time he filed his bankruptcy petition in August 2008 and when the bankruptcy

court confirmed his chapter 13 plan in November 2008, Holland was still employed by

Schwan’s and did not have a claim for retaliatory discharge. His claim against Schwan’s did

not arise until May 25, 2009, when it terminated his employment. Accordingly, his failure

to list the nonexistent claim in his bankruptcy petition cannot be considered to be a position

“totally inconsistent” with the present lawsuit; his claim against Schwan’s is not a prepetition

cause of action that was omitted from his initial bankruptcy petition. He could not have

disclosed a claim for an injury that had not yet occurred.

¶ 118 Holland’s claim arose after he had filed his bankruptcy petition and after the bankruptcy

court confirmed his chapter 13 plan. Property acquired by a debtor after the commencement

of a chapter 13 case, but before the case is closed, does become property of the bankruptcy

estate. In re Willett, 544 F.3d 787, 791 (7th Cir. 2008). In addition, a cause of action is an

asset that must be scheduled under section 521(a)(1) of the Bankruptcy Code (11 U.S.C.

§ 521(a)(1) (2006)), and a debtor’s duty to disclose potential causes of action is a continuing

duty. In re Coastal Plains, Inc., 179 F.3d 197, 208 (5th Cir. 1999). However, Holland’s

failure to schedule his postpetition claim against Schwan’s as an asset of the bankruptcy

estate does not constitute an inconsistent position given under oath. There is nothing in the

record to show that Holland filed any documents in the bankruptcy proceeding after May 25,

2009, in which he omitted the existence of his claim. Therefore, although he did not properly

disclose the retaliatory discharge claim, he did not take two inconsistent positions under oath.

¶ 119 Some Illinois courts have emphasized that “the doctrine of judicial estoppel is grounded

in the sanctity of the oath.” Ceres Terminals, Inc., 259 Ill. App. 3d at 854, 635 N.E.2d at 498.

Other courts have relaxed the oath requirement, but even under this alternative view, the

record must “clearly reflect that the party intended the trier to accept the truth of the party’s

position” regardless of whether it was made under oath. Department of Transportation v.

Coe, 112 Ill. App. 3d 506, 510, 445 N.E.2d 506, 508 (1983).

¶ 120 In the present case, under either view, we cannot conclude that the circuit court abused

its discretion. We cannot hold that the circuit court should have applied the judicial estoppel

doctrine when Holland did not take two contrary positions under oath and the record does

not establish that he intended to omit his claim against Schwan’s from his bankruptcy estate.

During the trial, Holland explained that when he filed his lawsuit against Schwan’s, he

notified his bankruptcy attorney and that all of his bankruptcy “paperwork went through [his]

bankruptcy attorney.” “The Courts have been reluctant to apply the doctrine of judicial

estoppel in the bankruptcy context where the nondisclosure of a claim was inadvertent.”

Jaeger v. Clear Wing Productions, Inc., 465 F. Supp. 2d 879, 882 (S.D. Ill. 2006). In Jaeger,

the court addressed the issue of whether to apply the judicial estoppel doctrine in a case

where the plaintiff failed to disclose his cause of action in his bankruptcy proceeding. The

court held that, in applying the judicial estoppel doctrine in such circumstances, it was

significant whether the plaintiff’s failure to disclose was an inadvertent oversight rather than

a deliberate manipulation. Id.

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¶ 121 Schwan’s cites Berge v. Mader, 2011 IL App (1st) 103778, 957 N.E.2d 968, in support

of its judicial estoppel argument, but that case is distinguishable. In Berge, the trial court

applied the judicial estoppel doctrine in a lawsuit where the plaintiff failed to disclose her

case in her initial bankruptcy petition. The issue before the court in Berge was whether the

circuit court abused its discretion in applying the judicial estoppel doctrine (id. ¶ 9), while

the issue before us in the present case is whether the circuit court abused its discretion in

declining to apply the doctrine. The Berge court held that the trial court did not abuse its

discretion in applying the judicial estoppel doctrine when the plaintiff filed several

bankruptcy pleadings, under oath, that omitted her cause of action, and she benefitted from

the omission because she was granted a discharge without giving her creditors any

knowledge of her potential to recover a money judgment. Id. ¶ 14. The court distinguished

Jaeger because, unlike Jaeger, the plaintiff in Berge knew of the undisclosed claim and had

a motive to conceal it. Id. ¶ 19. Accordingly, the trial court in Berge did not abuse its

discretion in applying the doctrine.

¶ 122 In the present case, we also must conclude that the circuit court did not abuse its

discretion in declining to apply the doctrine. Schwan’s cannot show that Holland intended

to deceive the bankruptcy court or harm his creditors by hiding assets. Schwan’s has not

directed us to any bankruptcy pleading filed after May 25, 2009, that listed assets of the

bankruptcy estate but omitted Holland’s claim against Schwan’s. Furthermore, he did not

benefit from the nondisclosure because the bankruptcy court dismissed his chapter 13 plan

for failure to make the plan’s required payments. See New Hampshire v. Maine, 532 U.S.

742, 750-51 (2001) (“Absent success in a prior proceeding, a party’s later inconsistent

position introduces no risk of inconsistent court determinations [citation] and thus poses little

threat to judicial integrity.” (Internal quotation marks omitted.)). Unlike the plaintiff in

Berge, Holland was not granted a discharge from any debts.

¶ 123 The judicial estoppel doctrine is designed to prevent a party from abusing the judicial

process, but Holland testified that he informed his bankruptcy attorney when he filed his

lawsuit against Schwan’s and relied on his attorney to prepare any paperwork required in the

bankruptcy proceeding. The doctrine of judicial estoppel is an equitable doctrine that should

not be used where it would work an injustice, and under the facts of this case, we cannot fault

the circuit court for declining to apply the doctrine.

¶ 124 (b)

¶ 125 Standing

¶ 126 The bankruptcy court dismissed Holland’s bankruptcy petition on December 7, 2010,

because he failed to pay the required payments on the plan. Upon the dismissal of the chapter

13 bankruptcy case, Holland’s retaliatory discharge claim against Schwan’s revested with

him. 11 U.S.C. § 349(b)(3) (2006) (a dismissal of a case “revests the property of the estate

in the entity in which such property was vested immediately before the commencement of

the case under this title”). At that point, it was no longer part of a bankruptcy estate.

Accordingly, after the bankruptcy court dismissed Holland’s chapter 13 bankruptcy petition,

Holland had standing to pursue his claim, not the bankruptcy trustee. In fact, the trustee had

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no standing after December 7, 2010.

¶ 127 Although Holland filed his lawsuit prior to the dismissal of the bankruptcy proceeding,

a chapter 13 debtor is permitted to pursue claims “in his own name for the estate.” Cable v.

Ivy Tech State College, 200 F.3d 467, 474 (7th Cir. 1999). Accordingly, when he filed his

lawsuit, Holland had standing to pursue the claim against Schwan’s in his own name despite

the pending bankruptcy petition and the chapter 13 plan. Id. Accordingly, the circuit court

correctly rejected Schwan’s standing argument.

¶ 128 Because we affirm the circuit court’s decision on the merits of the judicial estoppel and

standing issues, we need not address Schwan’s argument that the circuit court erred in

denying its request to amend its answer to raise judicial estoppel and standing as affirmative

defenses.

¶ 129 III

¶ 130 Motion for a Mistrial/Evidence of Unemployment Compensation

¶ 131 The next argument Schwan’s raises is that the circuit court abused its discretion in

denying its motion for a mistrial. Schwan’s motion for a mistrial arose when Holland

attempted to admit evidence concerning his claim for unemployment benefits. Specifically,

Holland attempted to admit a copy of the decision of the Illinois Department of Employment

Security (the Department) concerning his claim for unemployment compensation. Schwan’s

argues that Holland’s counsel improperly informed the jury that the exhibit showed that the

Department granted Holland unemployment benefits. Schwan’s objected to this evidence and

moved for a mistrial. The court denied Schwan’s request for a mistrial, but instructed the jury

to disregard any reference to the exhibit.

¶ 132 The decision to declare a mistrial lies within the discretion of the court. Jackson v. Reid,

402 Ill. App. 3d 215, 229, 935 N.E.2d 978, 990 (2010). “A mistrial should be declared only

as the result of some occurrence of such character and magnitude that a party is deprived of

its right to a fair trial, and the moving party must demonstrate actual prejudice as a result of

the ruling or occurrence.” Baker v. CSX Transportation, Inc., 221 Ill. App. 3d 121, 138, 581

N.E.2d 770, 782 (1991). We will not reverse the circuit court’s ruling on a motion for a

mistrial unless the decision is a clear abuse of discretion. Id.

¶ 133 Reviewing courts defer to the trial court’s discretion because “the trial court has had the

opportunity to consider the conduct of the trial as a whole, and therefore is in a superior

position to consider the effects of errors which occurred, the fairness of the trial to all parties,

and whether substantial justice was accomplished.” Magnani v. Trogi, 70 Ill. App. 2d 216,

220, 218 N.E.2d 21, 24 (1966). A trial judge’s discretion is given deference because he is in

a position to observe the trial attorneys’ manner of speaking and the impact their comments

had on the jury. Harrison v. Chicago Transit Authority, 48 Ill. App. 3d 564, 566, 363 N.E.2d

81, 83 (1977).

¶ 134 At the trial, Holland’s attorney asked Overstreet if he knew that Holland had applied for

unemployment benefits in mid-June 2009. Holland’s attorney had a copy of the decision

from the Department marked as exhibit 57, and the following took place:

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“Q. And in the second line of that, that’s a decision from the Department of

Employment Security, granting [Holland] unemployment. Right?

A. Which portion of this?

Q. That is the–That’s a notification he is getting unemployment. Right?

A. I don’t think I have the same thing, here, as you are looking at.”

¶ 135 At this point during the questioning, Schwan’s objected to the admission of evidence that

the Department had granted Holland unemployment benefits on the basis of relevancy. The

court sustained Schwan’s objection. The court then admonished the jury as follows: “Ladies

and gentlemen, I have determined that the Plaintiff’s Exhibit 57 is not admissible into

evidence, and you should disregard any references to that exhibit.”

¶ 136 Under these facts, Schwan’s cannot establish that it was denied a fair trial. The circuit

court properly admonished the jury to disregard any references to the Department’s

unemployment decision, and there is nothing in the record that suggests that it was unable

to follow the court’s instructions. In general, the prejudicial impact of a remark may be cured

if the trial court sustains the objection and instructs the jury to disregard the objectionable

testimony. See Nickon v. City of Princeton, 376 Ill. App. 3d 1095, 1103, 877 N.E.2d 776,

783 (2007). The trial judge is in the superior position to assess and determine the effect of

improper conduct on the part of counsel. Zuder v. Gibson, 288 Ill. App. 3d 329, 338, 680

N.E.2d 483, 490 (1997). The circuit court did not consider the brief testimony concerning

Holland’s unemployment benefits to be prejudicial, and we defer to the circuit court because

“the attitude and demeanor of counsel, as well as the atmosphere of the courtroom, cannot

be reproduced in the record.” Bisset v. Village of Lemont, 119 Ill. App. 3d 863, 865, 457

N.E.2d 138, 140 (1983). Nothing in the record compels us to overturn the circuit court’s

exercise of discretion in denying Schwan’s request for a mistrial.

¶ 137 IV

¶ 138 Jury Instructions

¶ 139 Next, Schwan’s takes issue with several of the circuit court’s jury instructions. “The

purpose of jury instructions is to convey to the jurors the correct principles of law applicable

to the evidence presented.” Martoccio v. Western Restaurants, Inc., 286 Ill. App. 3d 390,

392, 675 N.E.2d 1045, 1047 (1997). The trial court’s decision to instruct a jury on an issue

is a matter within the court’s sound discretion, and the court’s decision with respect to jury

instructions will not be overturned on review absent an abuse of discretion. Id. In

determining if a trial court abused its discretion, we look at the jury instructions, taken as a

whole, to determine whether they fairly, fully, and comprehensively instructed the jury of the

relevant legal principles. Thompson v. Abbott Laboratories, 193 Ill. App. 3d 188, 200, 549

N.E.2d 1295, 1303 (1990). “Jury instructions should not overemphasize any particular matter

and should be sufficiently clear so as not to confuse or mislead the jury.” Id. “A reviewing

court ordinarily will not reverse a trial court for giving faulty instructions unless they clearly

misled the jury and resulted in prejudice to the appellant.” Schultz v. Northeast Illinois

Regional Commuter R.R. Corp., 201 Ill. 2d 260, 274, 775 N.E.2d 964, 973 (2002).

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¶ 140 (a)

¶ 141 Instructions Concerning the Causation Standard

¶ 142 Schwan’s argues that the circuit court abused its discretion in giving Illinois Pattern Jury

Instructions, Civil, Nos. 250.01 and 250.02 (2011) (IPI Civil (2011)). It argues that, although

they are pattern instructions, they incorrectly stated the law because they provided a “mixed

motive” standard for retaliatory discharge, rather than the “but for” standard Schwan’s

maintains is required by law.

¶ 143 “A trial court is required to use an Illinois Pattern Jury Instruction when it is applicable

in a civil case after giving due consideration to the facts and the prevailing law, unless the

court determines that the instruction does not accurately state the law.” Schultz, 201 Ill. 2d

at 273, 775 N.E.2d at 972. “If the pattern instruction does not accurately state the law, the

court may instruct the jury pursuant to a nonpattern instruction.” Id. In the present case, we

agree with the circuit court that IPI Civil (2011) Nos. 250.01 and 250.02 accurately stated

the law.

¶ 144 Plaintiff’s instruction No. 7 (IPI Civil (2011) No. 250.01) instructed the jury concerning

the issues of the case as set forth in the parties’ pleadings as follows:

“[1] In Count I plaintiff claims that he was an employee of the defendant on May 25,

2009.

[2] The plaintiff claims that while employed by defendant he exercised his rights

under the Illinois Worker’s Compensation Act to reasonable and necessary medical care.

[3] The plaintiff further claims that the reason stated in paragraph [2] above was a

proximate cause of his firing and of plaintiff’s claimed damages.

[4] The defendant denies that plaintiff was fired or terminated for the reason claimed

by plaintiff.

[5] The defendant claims that the plaintiff was not fired, but rather voluntarily

resigned after being removed from his management job due to poor performance.”

¶ 145 Plaintiff’s instruction No. 8 (IPI Civil (2011) No. 250.02) instructed the jury on

Holland’s burden of proof as follows:

“The plaintiff has the burden of proving each of the following propositions:

First, that the plaintiff was an employee of the defendant;

Second, that the plaintiff was fired from employment with the defendant;

Third, that the plaintiff was fired because he exercised his right to medical care

provided under the Illinois Worker’s Compensation Act[;]

Fourth, that the plaintiff sustained damages as a result of his firing[;]

Fifth, that the reasons stated in paragraph ‘Third’ above was a proximate cause for

his firing and resulting damages.

If you find from your consideration of all the evidence that each of these propositions

has been proven, then your verdict should be for the plaintiff. On the other hand, if you

find from your consideration of all the evidence that any of these propositions have not

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been proven, then your verdict should be for the defendant.”

¶ 146 The circuit court also gave the “short form” version of IPI Civil (2011) No. 15.01

(plaintiff’s instruction No. 9), which defined the term “proximate cause,” to the jury as

follows: “When I use the expression ‘proximate cause,’ I mean a cause that, in the natural

or ordinary course of events, produced the plaintiff’s injury.” At the jury instruction

conference, Schwan’s objected to plaintiff’s instruction Nos. 7 and 8 (IPI Civil (2011) Nos.

250.01, 250.02), but did not object to plaintiff’s instruction No. 9 (IPI Civil (2011) No.

15.01).

¶ 147 On appeal, Schwan’s takes issue with these instructions and argues that they permitted

the jury to find liability by applying the wrong causation standard. Schwan’s argues that in

order to sustain a retaliatory discharge claim, an employee must be discharged “because of”

his or her exercise of rights under the Workers’ Compensation Act. 820 ILCS 305/4(h) (West

2010). The “because of” requirement, Schwan’s argues, requires a “but for” analysis.

Schwan’s maintains that the Illinois Pattern Jury Instructions provide a “mixed motive”

standard that allows a jury to find liability when an employee suffers an adverse employment

action because of both permissible and impermissible considerations. Under a “but for”

analysis, however, a plaintiff is required to show that the illegal motive was the reason that

the employer discharged the employee. Schwan’s concludes, therefore, that the jury was

improperly instructed that it could find liability if it found that a retaliatory motive was “a”

reason for the plaintiff’s discharge, but not necessarily “the” reason. We disagree with

Schwan’s analysis.

¶ 148 Holland had the burden of proving that his discharge was causally related to his filing a

claim under the Workers’ Compensation Act. Clemons v. Mechanical Devices Co., 184 Ill.

2d 328, 336, 704 N.E.2d 403, 406 (1998). In addressing the causation element of a retaliatory

discharge plaintiff’s claim, the jury had to decide “the employer’s motive in discharging the

employee.” Id. The plaintiff must convince the trier of fact by a preponderance of the

evidence that he was discharged for exercising his rights under the Workers’ Compensation

Act. Netzel v. United Parcel Service, Inc., 181 Ill. App. 3d 808, 812, 537 N.E.2d 1348, 1350

(1989). The allocation of proof in a retaliatory discharge claim is reviewed using traditional

tort analysis. Clemons, 184 Ill. 2d at 339, 704 N.E.2d at 408.

¶ 149 In Netzel, an employer argued that the trial court’s jury instructions were inadequate

because the court refused to instruct the jury “that plaintiff had to prove that he would not

have been discharged ‘but for’ the exercise of his statutory rights.” Netzel, 181 Ill. App. 3d

at 816, 537 N.E.2d at 1353. The court, however, disagreed and found “no error with respect

to the jury instructions.” Id. at 817, 537 N.E.2d at 1353. Likewise, in the present case, we

find no error with respect to the circuit court’s instructions to the jury.

¶ 150 Although Schwan’s presented evidence from which a jury could have concluded that it

had a valid or sufficient reason for terminating Holland’s employment, the mere existence

of a valid or sufficient reason does not defeat a retaliatory discharge claim, because the

employer’s discharge can, nonetheless, be retaliatory. Grabs v. Safeway, Inc., 395 Ill. App.

3d 286, 301, 917 N.E.2d 122, 134 (2009) (citing Siekierka v. United Steel Deck, Inc., 373 Ill.

App. 3d 214, 868 N.E.2d 374 (2007)). If the employer offers nonpretextual reasons for the

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discharge, the employee still can prove by a preponderance of the evidence that his discharge

was for exercising his rights under the Workers’ Compensation Act. Netzel, 181 Ill. App. 3d

at 812, 537 N.E.2d at 1350.

¶ 151 In the present case, the jury instructions informed the jury that Holland was required to

prove that exercising his rights under the Workers’ Compensation Act was “a proximate

cause of his firing.” The instructions further defined “proximate cause” as “a cause that, in

the natural or ordinary course of events, produced the plaintiff’s injury.” (Emphasis added.)

Accordingly, the jury instructions correctly directed the jury to find liability only if Holland

proved that he was fired for exercising his rights under the Workers’ Compensation Act. The

instructions’ requirement that Holland’s workers’ compensation claim must have “produced”

his discharge limited the jury to finding liability only if Holland proved that he was

terminated for exercising his rights under the Workers’ Compensation Act. The jury

instructions were consistent with traditional tort analysis and fairly, fully, and

comprehensively informed the jury concerning the legal principles relevant to Holland’s

burden of proof and the elements of his claim.

¶ 152 (b)

¶ 153 Jury Instructions Based on IPI Civil (2011) No. 60.01

¶ 154 Schwan’s argues that the circuit court erred by giving unnecessary jury instructions that

informed the jury about certain provisions of the Workers’ Compensation Act. Specifically,

Schwan’s argues that plaintiff’s instruction Nos. 10, 11, and 12 were not relevant to any

issues involving Holland’s claim for retaliatory discharge. These instructions were based on

IPI Civil (2011) No. 60.01, and each instruction set forth a section of the Workers’

Compensation Act. Schwan’s argues that the instructions were unnecessary and confused and

tainted the jury. We disagree.

¶ 155 Plaintiff’s instruction No. 10 informed the jury that the language of section 19(d) of the

Workers’ Compensation Act was as follows: “If any employee shall refuse to submit to such

medical treatment as is reasonably essential to promote his recovery, the employer may seek

an Order from the Illinois Workers’ Compensation Commission to reduce or suspend the

compensation of any such injured employee.”

¶ 156 Plaintiff’s instruction No. 11 instructed the jury as follows: “The Illinois Workers’

Compensation Act makes clear that it is the employer’s responsibility to both ‘provide and

pay for’ (820 ILCS 305/8) all necessary medical attention. Requesting and seeking medical

attention is the crucial first step in exercising rights under the Illinois Workers’

Compensation Act.”

¶ 157 Plaintiff’s instruction No. 12 informed the jury that the language of section 12 of the

Workers’ Compensation Act was as follows: “If the employee refused to attend or submit

himself to examination requested by the employer from a duly qualified medical practitioner

selected by the employer for the purpose of determining the nature, extent and probable

duration of the injury, the right to compensation payments and medical payments shall be

temporarily suspended until such examination shall have taken place.”

¶ 158 Schwan’s argues that the circuit court erred in giving these instructions because IPI Civil

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(2011) No. 60.01 should be given only when the evidence would support a finding that the

plaintiff’s injury was proximately caused by a violation of a statute intended to protect

against such an injury. Schwan’s notes that the statutes referenced in plaintiff’s instruction

Nos. 10, 11, and 12 were not intended to protect against retaliatory discharge. Therefore,

Schwan’s argues, the trial court committed reversible error in giving the instructions.

¶ 159 Each party has the right to have the jury clearly and fairly instructed upon each theory

which is supported by the evidence. Nassar v. County of Cook, 333 Ill. App. 3d 289, 297,

775 N.E.2d 154, 161 (2002). The test in determining the propriety of tendered instructions

is whether the jury was fairly, fully, and comprehensively informed as to the relevant

principles, considering the instructions in their entirety. Leonardi v. Loyola University of

Chicago, 168 Ill. 2d 83, 100, 658 N.E.2d 450, 458 (1995).

¶ 160 In Flynn v. Golden Grain Co., 269 Ill. App. 3d 871, 646 N.E.2d 1289 (1995), the

plaintiff, an employee of an asbestos removal contractor, brought an action for injuries under

the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, ¶ 60) against the premises owner and

a second contractor who supervised the removal of an oven. A jury returned a verdict in favor

of the defendants, and the plaintiff appealed. The plaintiff argued that he was denied a fair

trial because the jury was given an instruction, based on IPI Civil 3d No. 60.01, which

paraphrased various regulations of the Occupational Safety and Health Administration

(OSHA) pertaining to asbestos abatement despite the fact that he was not alleging that the

defendants had violated these regulations. Flynn, 269 Ill. App. 3d at 879, 646 N.E.2d at 1294.

The subject of the OSHA regulations concerned limiting access to asbestos removal work

areas. Id. at 882-83, 646 N.E.2d at 1296.

¶ 161 In affirming the judgment in favor of the defendants, the Flynn court agreed with the

plaintiff that IPI Civil 3d No. 60.01 is generally limited to situations where the evidence

supports a finding that the plaintiff’s injury was proximately caused by a violation of the

statute or regulation. However, the court held that the OSHA regulations were material to the

issue of whether one or both defendants willfully violated the Structural Work Act. Id. at

884, 646 N.E.2d at 1297.

¶ 162 The plaintiff in Flynn was required to prove that one or both defendants knew or should

have known that a plywood divider was being used as a support in an unsafe manner. Id. In

holding that the jury instruction was proper, the court stated, “Just as the jury was free to

determine that the regulations would, to a reasonable person, pose an obstacle to entry and

inspection of the containment area, it was equally free to find that a reasonable person

exercising ordinary care would have taken the necessary steps, as spelled out in the

regulations, to gain access to the area for the purpose of inspecting for unsafe work

practices.” Id. The Flynn court held that the instruction could not have misled the jury

because “the jury was fully and accurately instructed as to the circumstances under which a

violation of the Structural Work Act by one or both defendants may be found to exist.” Id.

at 884-85, 646 N.E.2d at 1297; see also Tenenbaum v. City of Chicago, 60 Ill. 2d 363, 375-

76, 325 N.E.2d 607, 615 (1975) (ordinance regulations in an action based on the Structural

Work Act aided the jury in determining whether a violation of the act was willful).

¶ 163 As noted above, in order for Holland to have succeeded in his claim against Schwan’s

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for retaliatory discharge, he had to prove to the jury that he was an employee before his

injury, that he exercised a right granted by the Workers’ Compensation Act, that he was

discharged by Schwan’s, and that his discharge was causally related to his filing a claim

under the Workers’ Compensation Act. Clemons v. Mechanical Devices Co., 184 Ill. 2d 328,

335-36, 704 N.E.2d 403, 406 (1998). The jury was instructed as follows:

“The plaintiff has the burden of proving each of the following propositions:

First, that the plaintiff was an employee of the defendant;

Second, that the plaintiff was fired from employment with the defendant;

Third, that the plaintiff was fired because he exercised his right to medical care

provided under the Illinois Worker’s Compensation Act[;]

Fourth, that the plaintiff sustained damages as a result of his firing[;]

Fifth, that the reasons stated in paragraph ‘Third’ above was a proximate cause of his

firing and resulting damages.

If you find from your consideration of all the evidence that each of these propositions

has been proven, then your verdict should be for the plaintiff. On the other hand, if you

find from your consideration of all the evidence that any of these propositions have not

been proven, then your verdict should be for the defendant.”

¶ 164 Therefore, the jury was fully and accurately instructed on the elements of Holland’s

claim, and the instructions would not have misled the jury into finding in Holland’s favor

without him having proved that he was fired as a result of his exercising his rights under the

Act. Flynn, 269 Ill. App. 3d at 884-85, 646 N.E.2d at 1297.

¶ 165 Plaintiff’s instruction No. 11 is relevant to the jury’s determination of whether the

plaintiff proved paragraph “Third” above, i.e., that he was fired because he exercised his

right to medical care provided under the Illinois Workers’ Compensation Act. Paragraph

“Third” in the jury instruction above specifically references Holland’s “right to medical care”

under the Act, and plaintiff’s instruction No. 11 accurately describes Holland’s right to seek

medical benefits under the statute.

¶ 166 With respect to plaintiff’s instruction Nos. 10 and 12, they concern the plaintiff’s

obligation under the Act to submit to medical treatment as is reasonably essential to promote

his recovery and his obligation to submit to an IME requested by Schwan’s. The instructions

accurately state that Holland’s right to compensation and medical expenses may be

suspended as a result of his failure to attend an examination requested by the employer or

submit to medical treatment.

¶ 167 Plaintiff’s instruction Nos. 10 and 12 were relevant because Holland had to prove

Schwan’s motive in terminating his employment and because he had a claim for punitive

damages. The jury was instructed (plaintiff’s instruction No. 14) that in determining whether

to award punitive damages, it was required to determine how reprehensible Schwan’s

conduct was by considering, among other things, the facts and circumstances of its conduct

and the frequency and duration of its misconduct. Holland presented evidence to the jury that

after his doctor prescribed physical therapy, he did not schedule any sessions because he

never received authorization for the therapy and was too busy at work. In addition, he

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presented evidence that he failed to show up for an IME on February 13, 2009. Schwan’s

actions in response to these events are relevant to Holland’s claim for punitive damages, and

plaintiff’s instruction Nos. 10 and 12 assisted the jury in understanding the evidence. Holland

presented evidence that Schwan’s worked him beyond his treating physician’s medical

restrictions as a result of his failure to attend the IME and physical therapy.

¶ 168 Concerning the physical therapy, Holland explained to Bruns that he was unable to attend

physical therapy because he had not received approval for the therapy and because he was

short-staffed. Holland presented evidence to the jury that Schwan’s attempted to use his

inability to attend physical therapy as an opportunity to end his medical care that he was

entitled to under the Act, irrespective of whether he had recovered from his painful, work-

related back injury. Bruns contacted Holland’s treating physician, Dr. Vaught, without

Holland’s knowledge and attempted to get the doctor to release Holland back to full duty,

not because he had recovered from his work-related injuries, but because Schwan’s asserted

that he was being noncompliant with his treatment plan. Dr. Vaught told her that he would

not release the claimant back to full duty without reexamining him. When Dr. Vaught

reexamined the claimant, he increased his work restrictions rather than releasing him to full

duty with no restrictions. Bruns then requested Kantor to schedule the IME, and Holland

subsequently missed the IME because of a miscommunication between him and Kantor.

¶ 169 Overstreet learned that Holland’s failure to attend the IME was the result of a

miscommunication. Nonetheless, Schwan’s continued to sanction Holland by working him

beyond his restrictions and treating him as if he had no work-related injury. Schwan’s own

IME doctor, however, agreed with Holland’s treating physician. Nonetheless, Young told

Holland that he would have to work unrestricted full duty, but Holland protested and

expressed concern about the risk of further injury to his back. Young responded to Holland’s

concern by warning him that his refusal to work outside his doctor’s restrictions would result

in his immediate firing. Young also rejected Skuya’s suggestion to take Holland off work for

30 days so he could complete his therapy and recovery. Young sent an e-mail to Skuya

stating that Holland had “been playing this game for quite some time” and that he was

“looking for a long-term solution to this problem, not a short-term wait and see.”

¶ 170 The jury was entitled to consider this evidence in determining how reprehensible

Schwan’s conduct was in its attempt to deny Holland the protections afforded under the

Workers’ Compensation Act. In making this determination, the jury was aided in knowing

that Schwan’s acted outside the permissible boundaries of the Act when it worked Holland

beyond his medical restrictions because he missed the IME and had not scheduled physical

therapy. The jury instructions informed the jury of the remedies available to an employer who

genuinely believes that an injured employee is refusing treatment, and that information could

be considered by the jury in assessing Schwan’s motive in terminating Holland. The jury

could consider this evidence in finding that Holland’s subsequent termination not only was

illegal under the Act, but constituted a continuation of a willful and wanton pattern and

practice of attempts to frustrate Holland’s rights under the Act. In addition, the fact that

Schwan’s failed to avail itself of the remedies available to an employer who genuinely

believes that an injured employee is refusing treatment could be considered by the jury in

assessing Schwan’s motive in terminating Holland.

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¶ 171 (c)

¶ 172 Jury Instructions Based on IPI Civil (2011) Nos. 14.01 and 14.04

¶ 173 Schwan’s last argument with respect to the jury instructions takes issue with plaintiff’s

instruction Nos. 15 and 16. Plaintiff’s instruction No. 15 is based on IPI Civil (2011) No.

14.01, and it instructed the jury as follows:

“When I use the expression, ‘willful and wanton conduct’ I mean a course of action

which shows actual or deliberate intention to harm, or if not intentional shows utter

indifference to or conscious disregard for the rights guaranteed to Larry Holland by the

Illinois Workers’ Compensation Act to not be subject to retaliatory discharge.”

¶ 174 Plaintiff’s instruction No. 16 is based on IPI Civil (2011) No. 14.04, and it instructed the

jury as follows:

“It was the duty of the defendant, before and at the time of the occurrence, to refrain

from willful and wanton conduct which would endanger the rights of the plaintiff.”

¶ 175 Schwan’s argues that these two jury instructions were improper because they urged the

jury, in awarding punitive damages, to punish it for violating Holland’s “rights” under the

Workers’ Compensation Act, which could involve acts and/or omissions that have nothing

to do with his termination and were not at issue in the trial. We disagree. Plaintiff’s

instruction No. 15 expressly defines “willful and wanton conduct” in terms of Holland’s right

“to not be subject to retaliatory discharge.” In addition, evidence of Schwan’s violations of

Holland’s rights under the Workers’ Compensation Act was relevant for the jury to assess

Schwan’s motives in terminating his employment and the reprehensibility of its conduct. In

determining whether to assess punitive damages, the jury can consider the act itself as well

as other circumstances including the motives of the wrongdoer, the relations between the

parties, and the provocation or want of provocation for the act. Statler v. Catalano, 167 Ill.

App. 3d 397, 406, 521 N.E.2d 565, 572 (1988).

¶ 176 Also, as Holland correctly argues, “[t]o preserve an objection to a jury instruction a party

must both specify the defect claimed and tender a correct instruction.” Deal v. Byford, 127

Ill. 2d 192, 202-03, 537 N.E.2d 267, 271 (1989). “If the defendants believed that the jury

instructions used in this case were incorrect, incomplete, or otherwise inadequate, it was their

duty to object to the instructions and to offer their own remedial versions.” Id. at 203, 537

N.E.2d at 271. Schwan’s objected to plaintiff’s instruction Nos. 15 and 16, but the record

does not indicate that it submitted its own instruction containing what it believed to be the

correct statement of the law concerning willful and wanton conduct. Therefore, its objection

to plaintiff’s instruction Nos. 15 and 16 is waived. Aguinaga v. City of Chicago, 243 Ill. App.

3d 552, 576, 611 N.E.2d 1296, 1314 (1993) (plaintiff’s counsel failed to offer remedial

versions of the instructions; therefore, “if there was any error in tendering the ***

instructions to the jury, the plaintiff has waived the issue”).

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¶ 177 V

¶ 178 Admissibility of Schwan’s Insurance Carrier’s Claim File

¶ 179 Schwan’s next argues that the circuit court erred in admitting into evidence its workers’

compensation insurance carrier’s (Hartford’s) claim file. The claim file contained the notes

of SRS’s workers’ compensation adjuster, Joan Kantor, in which she documented her

communications with various Schwan’s agents and employees relevant to the handling of

Holland’s workers’ compensation claim. Kantor did not testify at the trial. Schwan’s argues

that the claim file was inadmissible hearsay evidence. The circuit court admitted the claim

file into evidence over Schwan’s objection, ruling that Kantor’s notes were not hearsay

because they were not being offered for the truth of the matters asserted in the notes, but

were being admitted for the purpose of showing the knowledge of Schwan’s employees. The

court ruled that only the portions of the claim file that documented communications between

Hartford and Schwan’s were admissible “for the purpose of showing their [Schwan’s]

knowledge.” The court ordered the redaction of all other portions of the file. The circuit court

also admitted the claim file over Schwan’s objections based on the attorney-client privilege

and the work-product doctrine.

¶ 180 Prior to the trial, the parties stipulated that Hartford’s claim files “are true and genuine

business records kept in the ordinary course of business containing information regularly

utilized in said business and shall be self-authenticating without need for a witness sponsor.”

The stipulation preserved Schwan’s objections to the admission of the claim file based on

the following objections: that it is irrelevant; that its probative value is substantially

outweighed by the danger of unfair prejudice, confusion, or waste of time; that it was

prepared in anticipation of workers’ compensation litigation; and that it contains hearsay

within hearsay (Ill. R. Evid. 805 (eff. Jan. 1, 2011)).

¶ 181 (a)

¶ 182 Hearsay Within Hearsay

¶ 183 On appeal, Schwan’s renews its objection to the claim file on the basis that it contained

hearsay statements. “Hearsay evidence is an out-of-court statement offered to prove the truth

of the matter asserted in court and is generally inadmissible unless it falls within a hearsay

exception.” Rowe v. State Bank of Lombard, 247 Ill. App. 3d 686, 697, 617 N.E.2d 520, 528

(1993). Illinois Supreme Court Rule 236(a) (eff. Aug. 1, 1992) provides a “business records”

exception to the hearsay rule. Rule 236(a) states, in relevant part, as follows:

“Any writing or record, whether in the form of any entry in a book or otherwise, made

as a memorandum or record of any act, transaction, occurrence, or event, shall be

admissible as evidence of the act, transaction, occurrence, or event, if made in the regular

course of any business, and if it was the regular course of the business to make such a

memorandum or record at the time of such an act, transaction, occurrence, or event or

within a reasonable time thereafter. All other circumstances of the making of the writing

or record, including lack of personal knowledge by the entrant or maker, may be shown

to affect its weight, but shall not affect its admissibility.” Ill. S. Ct. R. 236(a) (eff. Aug.

1, 1992).

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¶ 184 “The rationale underlying the admissibility of business records is the recognition that

businesses are motivated to keep routinely accurate records and that they are unlikely to

falsify records kept in the ordinary course of business and upon which they depend.” People

v. Virgin, 302 Ill. App. 3d 438, 450, 707 N.E.2d 97, 105 (1998). However, Rule 805 of the

Illinois Rules of Evidence, which became effective on January 1, 2011, provides that

“[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the

combined statements conforms with an exception to the hearsay rule provided in these rules.”

Ill. R. Evid. 805 (eff. Jan. 1, 2011). Therefore, pursuant to Rule 805 of the Illinois Rules of

Evidence, when a business record contains hearsay statements within the record, the hearsay

statements within the record must also be admissible under an exception to the hearsay rule.

See, e.g., Hunt v. Dart, 754 F. Supp. 2d 962, 967 n.3 (N.D. Ill. 2010) (interpreting Rule 805

of the Federal Rules of Evidence: “Rule 805, the hearsay within hearsay rule, requires that

statements within a business record must, themselves, qualify under an exception to the

hearsay rule.”).

¶ 185 In the present case, as noted above, the circuit court ordered that the claim file be

redacted except for statements that were made by the insurance adjustor (Kantor) to

Schwan’s employees and statements from Schwan’s employees to Kantor. Statements made

by Schwan’s employees are admissible against Schwan’s as a party admission. A statement

by an employee is admissible against the employer as a party admission if it is made during

the existence of the employment relationship and concerns matters within the scope of the

employment. Vojas v. K mart Corp., 312 Ill. App. 3d 544, 548, 727 N.E.2d 397, 401 (2000).

In addition, statements made by a party’s agent about a matter within the scope of his or her

agency and made by virtue of the agent’s authority are party-opponent admissions. Jenkins

v. Dominick’s Finer Foods, Inc., 288 Ill. App. 3d 827, 834, 681 N.E.2d 129, 134 (1997).

Accordingly, statements made by Schwan’s agents and employees that were documented by

Kantor in her file are admissible as party admissions.

¶ 186 With respect to Kantor’s statements to Schwan’s employees that Kantor recorded in the

claim file, we note that the circuit court admitted Kantor’s statements contained in the claim

file to establish only that Kantor made the statements, not as proof of any matter asserted by

Kantor in her statements. The circuit court ruled that Kantor’s statements were relevant to

show Schwan’s knowledge. “[E]vidence that is offered to show a person’s knowledge or

awareness of a circumstance and not to establish the truth of the circumstance is not

hearsay.” People v. Prather, 2012 IL App (2d) 111104, ¶ 11, 979 N.E.2d 540. In addition,

it is not hearsay to use an out-of-court statement for the purpose of establishing whether or

not the statement was made and not for the truth of the matter asserted in the statement.

People v. Clark, 47 Ill. App. 3d 624, 628, 365 N.E.2d 20, 25 (1977).

¶ 187 Plaintiff’s exhibit 67 is the redacted copy of Hartford’s claim file. As noted above, it

contains only documented communications between Kantor and Schwan’s employees. The

exhibit is 29 pages in length and includes communications for the period of August 26, 2008,

through August 21, 2009. In its brief, Schwan’s raises a generalized hearsay objection to the

entire claim file, but that argument is not persuasive for the reasons noted above. Schwan’s

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offers a specific hearsay argument and hearsay analysis3 with respect to only one statement

contained in the 29-page exhibit.

¶ 188 Schwan’s objects to the following entry Kantor made in the claim file on January 27,

2009:

“Rcvd call from eva [Bruns], she just rcvd note from pac at dr ofc, that gives ee even

more restrictions than he had before, saying he can only work 6 hours on days he has pt.

restricts lifting etc. it is time for ime. ee has been on l/d for over 150 days & he knows

his head is on the chopping block.”

¶ 189 Neither Bruns nor Kantor testified at the trial. When Skuya testified about Kantor’s

January 27, 2009, note, she did not know whether the “chopping block” comment was added

by Kantor or whether the comment was part of Kantor’s notation of what Bruns said in her

telephone conversation with Kantor. Accordingly, Schwan’s argues that the record does not

establish who made the out-of-court statement, “he knows his head is on the chopping

block.” Therefore, Schwan’s argues, it should have been excluded as hearsay because it

could have been Kantor’s statement and not one attributable to Schwan’s.

¶ 190 We believe that whether Kantor or Bruns made the “chopping block” comment and how

much weight, if any, to place on the comment was an issue for the jury to consider. More

importantly, the “chopping block” comment was, at most, cumulative of other admissible

evidence. Accordingly, the comment cannot be considered so prejudicial that it affected the

outcome of the seven-day trial.

¶ 191 The jury could have concluded that Bruns made the “chopping block” comment because

a few days before, on January 15, 2009, Kantor documented a previous statement by Bruns

that Holland was “under the gun at work for very poor job performance issues” and that “he

will be replaced soon I imagine since hsi [sic] FMLA has run out.”

¶ 192 Regardless, Schwan’s has not established a basis for reversing the jury’s verdict due to

the admission of this one statement into evidence. Evidentiary rulings will not be reversed

unless the error “was substantially prejudicial and affected the outcome of trial.” Jackson v.

Pellerano, 210 Ill. App. 3d 464, 471, 569 N.E.2d 167, 172 (1991). “The burden is on the

party seeking reversal to establish prejudice.” Id. Schwan’s has not made a convincing

argument that the “chopping block” comment was substantially prejudicial and affected the

outcome of the seven-day trial. The jury considered substantial evidence of communications

between Schwan’s employees and the insurance adjuster concerning their efforts to remove

Holland as the facility supervisor. The “chopping block” comment was cumulative to this

evidence.

3

In the statement-of-facts segment of its brief, Schwan’s notes that it made various relevancy

objections to portions of the Hartford claim file, but in its argument section of its brief, it does not

offer any relevancy analysis or authority with respect to the SRS claim file. Its arguments are based

on hearsay, the attorney-client privilege, and the work-product doctrine.

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¶ 193 (b)

¶ 194 Attorney-Client Privilege

¶ 195 Schwan’s argues, alternatively, that the claim file was not admissible under the attorney-

client privilege. The attorney-client privilege is designed to promote and encourage open and

frank consultation between a client and his attorney. Pietro v. Marriott Senior Living

Services, Inc., 348 Ill. App. 3d 541, 551, 810 N.E.2d 217, 226 (2004). The privilege extends

to communications between an insured and its insurer. People v. Ryan, 30 Ill. 2d 456, 460-

61, 197 N.E.2d 15, 17 (1964). The basis for extending the privilege to an insurer is that the

insured may properly assume that the communication is made to the insurer as an agent for

the dominant purpose of transmitting it to an attorney for the protection of the interests of the

insured. Id. “The party claiming the attorney-client privilege bears the burden of presenting

factual evidence that establishes the privilege.” Pietro, 348 Ill. App. 3d at 551, 810 N.E.2d

at 226. “Because it is the privilege, not the duty to disclose, that is the exception, the

privilege ought to be strictly confined within its narrowest possible limits.” (Emphasis

added.) Buckman v. Columbus-Cabrini Medical Center, 272 Ill. App. 3d 1060, 1066, 651

N.E.2d 767, 771 (1995).

¶ 196 To extend the attorney-client privilege to an insurer, the party asserting the privilege must

prove: (1) the identity of the insured, (2) the identity of the insurance carrier, (3) the duty to

defend a lawsuit, and (4) that a communication was made between the insured and an agent

of the insurer. Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 407, 698

N.E.2d 641, 649 (1998). In addition, the court in Chicago Trust Co. also noted that the

insurer-insured privilege, as an offshoot of the attorney-client privilege, applies only when

“ ‘the insured may properly assume that the communication is made to the insurer for the

dominant purpose of transmitting it to an attorney for the protection of the interests of the

insured.’ ” (Emphasis in original.) Id. at 409, 698 N.E.2d at 651 (quoting Ryan, 30 Ill. 2d at

461, 197 N.E.2d at 17).

¶ 197 Under the facts of the present case, the attorney-client privilege does not apply to exclude

Hartford’s claim file. There is no evidence in the record that supports the conclusion that the

Hartford claim file contains communications that were made “for the dominant purpose of

transmitting it to an attorney for the protection of the interests of the insured.” Ryan, 30 Ill.

2d at 461, 197 N.E.2d at 17. The statements made by Schwan’s employees that are recorded

in the claim file were not made for the purpose of seeking legal advice but pertained to

Holland’s medical treatments, work restrictions, and conditions of ill-being. When the

statements were made, Schwan’s and Hartford both agreed that Holland suffered from

conditions of ill-being as a result of a workplace accident, and they did not dispute that his

claim was covered under the Workers’ Compensation Act. Accordingly, the purpose of the

statements contained within the claim file was to help Schwan’s and Hartford administer

Holland’s workers’ compensation claim, rather than to enable Schwan’s to obtain legal

counsel. There is no evidence that the statements were made in order to deliver them to an

attorney for the purpose of preparing a defense to Holland’s workers’ compensation claim.

In addition, there is no evidence that at the time the statements were made anyone anticipated

delivering the statements to an attorney for the purpose of legal advice. Accordingly, the

statements are not in the nature of attorney-client communications and do not fall within the

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limited attorney-client privilege that has been extended to insurer/insured relationships.

¶ 198 (c)

¶ 199 Business Record Prepared in Anticipation of Litigation

¶ 200 Schwan’s also argues that the claim file is inadmissible because it is a business record

that was made in anticipation of litigation. Therefore, Schwan’s argues, it is inadmissible

because it does not possess the same trustworthiness of other business records prepared in

the ordinary course of business. See City of Chicago v. Old Colony Partners, L.P., 364 Ill.

App. 3d 806, 819, 847 N.E.2d 565, 566 (2006). This rule is based on the conclusion that the

motivation of a person preparing a report that he intends to use in future litigation could

affect its trustworthiness. Poltrock v. Chicago & North Western Transportation Co., 151 Ill.

App. 3d 250, 254, 502 N.E.2d 1200, 1203 (1986).

¶ 201 However, there is no evidence in the record that the Hartford claim file was created in

anticipation of litigation as opposed to in its regular course of business. As noted above,

Schwan’s and Hartford did not dispute that Holland had been injured in a workplace accident

and was entitled to workers’ compensation benefits. The notes contained within the claim

file were made in the regular course of business processing Holland’s claim, a claim that was

not disputed at the time the notes in the claim file were created. Accordingly, the claim file

does not suffer from a lack of trustworthiness that would remove it from admissibility under

the business-records exception to the hearsay rule.

¶ 202 Furthermore, this “anticipation of litigation” rule does not apply where the report is

sought to be admitted against the party who prepared it. Amos v. Norfolk & Western Ry. Co.,

191 Ill. App. 3d 637, 645-46, 548 N.E.2d 96, 101 (1989). “Where the report is damaging to

the party who prepared it ***, there is no reason to question its trustworthiness.” Id. at 646,

548 N.E.2d at 101. In the present case, although Schwan’s did not prepare the claim file, it

was, nonetheless, prepared by SRS in administering a workers’ compensation claim on

behalf of Hartford and Schwan’s. Holland admitted the claim file, and there is no reason to

question the motivation or credibility of Kantor with respect to statements that are

unfavorable to Schwan’s that are contained within the Hartford claim file. See Moffett v.

McCauley, 724 F.2d 581, 584 n.1 (7th Cir. 1984) (“this rule does not apply where, as here,

the evidence is offered against the party for whom [the report] was prepared”).

¶ 203 (d)

¶ 204 Work-Product Doctrine

¶ 205 Finally, Schwan’s argues that the claim file should not have been admitted into evidence

under the work-product doctrine. The work-product doctrine is separate and distinct

protection from the attorney-client privilege. Janousek v. Slotky, 2012 IL App (1st) 113432,

¶ 34, 980 N.E.2d 641. Illinois Supreme Court Rule 201(b)(2) defines work product as

follows: “Material prepared by or for a party in preparation for trial is subject to discovery

only if it does not contain or disclose the theories, mental impressions, or litigation plans of

the party’s attorney.” Ill. S. Ct. R. 201(b)(2) (eff. July 1, 2002). “The work-product doctrine

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provides a broader protection than the attorney-client privilege, and is designed to protect the

right of an attorney to thoroughly prepare his case and to preclude a less diligent adversary

attorney from taking undue advantage of the former’s efforts.” Waste Management, Inc. v.

International Surplus Lines Insurance Co., 144 Ill. 2d 178, 196, 579 N.E.2d 322, 329 (1991).

Any relevant material generated in preparation for trial which does not disclose “conceptual

data” is freely discoverable under Rule 201(b)(2). Id. at 196, 579 N.E.2d at 329-30.

¶ 206 In the present case, as noted above, there is nothing in the record to suggest that the claim

file was generated in preparation for trial. The claim file was prepared to assist Hartford in

processing Holland’s workers’ compensation claim. It was not prepared by Schwan’s or on

behalf of Schwan’s in preparation for Holland’s claim of retaliatory discharge. Accordingly,

the claim file is not protected under the work-product doctrine. In addition, there is nothing

in the file that reveals “the theories, mental impressions, or litigation plans” of Schwan’s

attorney. Cangelosi v. Capasso, 366 Ill. App. 3d 225, 851 N.E.2d 954 (2006) (nurse’s notes

were not protected under the work-product doctrine where they did not contain or disclose

theories, mental impressions, or litigation plans of any party’s attorney). Schwan’s attempt

to raise the work-product doctrine to prevent Holland from using the Hartford claim file

stretches the doctrine’s protection beyond its intended purpose.

¶ 207 VI

¶ 208 Compensatory Damages

¶ 209 Next, Schwan’s raises issues concerning the amount of compensatory damages awarded

by the jury. Specifically, Schwan’s challenges the jury’s award for lost past and future

salaries and benefits and its award for emotional damages. Schwan’s argues that the jury’s

awards for lost salaries and benefits are improper because the jury disregarded

uncontroverted evidence that Holland failed to mitigate those damages. With respect to the

jury’s award for emotional damages, it argues that the amount of the award is excessive and,

therefore, against the manifest weight of the evidence. We disagree and affirm the jury’s

compensatory damages awards.

¶ 210 (a)

¶ 211 Failure to Mitigate Damages for Lost Wages

¶ 212 “The trier of fact determines the amount of damages and, as a reviewing court, we give

great deference to a jury’s award of damages.” Estate of Oglesby v. Berg, 408 Ill. App. 3d

655, 661-62, 946 N.E.2d 414, 419 (2011). “A verdict will not be set aside by a court unless

it is so excessive that it indicates that the jury was moved by passion or prejudice or unless

it exceeds the necessarily flexible limits of fair and reasonable compensation or is so large

that it shocks the judicial conscience.” Kindernay v. Hillsboro Area Hospital, 366 Ill. App.

3d 559, 572, 851 N.E.2d 866, 877 (2006).

¶ 213 The duty to mitigate damages requires an injured party to exercise reasonable diligence

and ordinary care in trying to minimize his damages. Amalgamated Bank of Chicago v.

Kalmus & Associates, Inc., 318 Ill. App. 3d 648, 658, 741 N.E.2d 1078, 1086 (2000). “The

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duty to mitigate will not be invoked as grounds for a hypercritical examination of a plaintiff’s

conduct.” Id. at 660, 741 N.E.2d at 1087. The failure to mitigate damages is an affirmative

defense that must be pleaded and proved by the defendant. Rozny v. Marnul, 43 Ill. 2d 54,

73, 250 N.E.2d 656, 666 (1969). The jury’s finding on the issue of whether the plaintiff

failed to mitigate damages is reviewed under the manifest weight of the evidence standard.

Templeton v. Chicago & North Western Transportation Co., 257 Ill. App. 3d 42, 60, 628

N.E.2d 442, 454 (1993).

¶ 214 In the present case, Holland testified that he applied for numerous positions with other

companies, attended job fairs, filled out 8 to 10 applications per week, and attended

interviews with several potential employers. He believed that he could have obtained

employment with the Transportation Safety Administration if he had not failed the physical.

Based on the evidence presented at the trial, we cannot say that the jury was required to find

that Holland failed to mitigate his damages.

¶ 215 Schwan’s argues that it met its burden of proving that Holland did not mitigate his

damages with evidence that it offered him a position as a material handler, but he never

accepted the job. The jury, however, was not obligated to find that this was a legitimate job

offer. The jury heard evidence that there was not enough work to keep two part-time material

handlers busy at the West Frankfort depot. In fact, Schwan’s never did place a third material

handler at the West Frankfort depot because the extra worker was not needed at the depot.

Accordingly, the jury was not required to find that Schwan’s made a bona fide offer of

employment. Instead, it was entitled to find that the offer was a sham that was designed to

circumvent its responsibility under the Workers’ Compensation Act. Reliance Elevator Co.

v. Industrial Comm’n, 309 Ill. App. 3d 987, 993, 723 N.E.2d 326, 331 (1999) (“Employers

must not be allowed to defeat an injured employee’s entitlement to a disability award by

making sham job offers.”). Therefore, we affirm the jury’s award for Holland’s lost salary

and benefits.

¶ 216 (b)

¶ 217 Jury’s Award for Emotional Damages

¶ 218 Next, Schwan’s challenges the jury’s award of $400,000 for emotional damages. “The

issue of damages is particularly within the discretion of the jury[,] and courts are reluctant

to interfere with the jury’s exercise of its discretion.” Chrysler v. Darnall, 238 Ill. App. 3d

673, 678, 606 N.E.2d 553, 558 (1992). “A jury’s award of damages will not be overturned

unless it was against the manifest weight of the evidence.” Napcor Corp. v. JP Morgan

Chase Bank, NA, 406 Ill. App. 3d 146, 157, 938 N.E.2d 1181, 1191 (2010). “An award of

damages will be considered excessive only if it exceeds the range of fair and reasonable

compensation, results from passion or prejudice, or is so large that it shocks the judicial

conscience.” Clarke v. Medley Moving & Storage, Inc., 381 Ill. App. 3d 82, 96, 885 N.E.2d

396, 410 (2008). Under these standards, we cannot say that the jury’s award for emotional

damages was excessive.

¶ 219 In determining the amount of emotional damages to award Holland, the jury considered

his testimony that, as a result of Schwan’s retaliatory discharge, he suffered from emotional

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distress and was forced to cash out his retirement and pension funds in an attempt to keep

current on the payments required under his chapter 13 bankruptcy plan. He felt

embarrassment and a sense of failure when his house was foreclosed on after his chapter 13

bankruptcy was dismissed by the bankruptcy court for failure to make the required payments.

He described his embarrassment from an incident when he had to chase a repossession tow

truck and plead with the truck’s driver in order to recover personal belongings from the

vehicle. He had to borrow his daughter’s and mother-in-law’s vehicles. He told the jury about

the stress and anxiety he suffered from losing his medical insurance, which he relied on to

provide for medication for his psychotic son. He felt shame and a sense of failure when he

could not afford to send his daughter with her classmates on her senior trip and when his wife

was forced to get a second part-time job because he could not find work.

¶ 220 Likewise, Holland’s wife also told the jury about changes in Holland’s mood and

behavior, that he became more withdrawn and temperamental as a result of the retaliatory

discharge, that he stopped eating dinner with his family, and that he displayed unusual fits

of anger about trivial matters. Holland told his wife that she would be better off without him.

¶ 221 Schwan’s cites Babikian v. Mruz, 2011 IL App (1st) 102579, 956 N.E.2d 959, and asks

us to compare Holland’s award for emotional distress with the jury’s award in Babikian. We

decline to do so. Illinois courts “have traditionally declined to make such comparisons in

determining whether a particular award is excessive.” Richardson v. Chapman, 175 Ill. 2d

98, 114, 676 N.E.2d 621, 628 (1997). The jury in the present case was entitled to weigh the

evidence relevant to Holland’s emotional distress and determine the appropriate amount of

emotional damages to award him for Schwan’s retaliatory discharge. Considering the

evidence before the jury, we will not second-guess the amount of its award.

¶ 222 VII

¶ 223 Punitive Damages

¶ 224 Finally, Schwan’s challenges the jury’s award of punitive damages. It argues that the

circuit court abused its discretion in instructing the jury to consider punitive damages and

that the amount of the jury’s award of punitive damages is excessive and unconstitutional.

We disagree.

¶ 225 (a)

¶ 226 The Trial Court’s Submission of Punitive Damages Instructions to the Jury

¶ 227 In Illinois, before a jury can consider the issue of punitive damages, the circuit court must

make a preliminary determination of whether the facts of the particular case justify

submitting the issue to the jury for consideration. Franz v. Calaco Development Corp., 352

Ill. App. 3d 1129, 1138, 818 N.E.2d 357, 367 (2004). “Once a trial court determines that

punitive damages are, as a matter of law, appropriate to the cause of action, the trial court’s

decision to submit the issue to the jury will not be reversed absent an abuse of discretion.”

Gehrett v. Chrysler Corp., 379 Ill. App. 3d 162, 179, 882 N.E.2d 1102, 1118 (2008).

¶ 228 “Punitive damages may properly be awarded in a case sounding in retaliatory discharge.”

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Paz v. Commonwealth Edison, 314 Ill. App. 3d 591, 601, 732 N.E.2d 696, 706 (2000). They

are intended to punish the wrongdoer and serve as a deterrent to antisocial behavior in the

future. Turner v. Firstar Bank, N.A., 363 Ill. App. 3d 1150, 1159, 845 N.E.2d 816, 824

(2006). “Punitive damages may be awarded where retaliatory discharge has been committed

with fraud, actual malice, deliberate violence or oppression, or when the defendant has acted

willfully, or with such gross negligence as to indicate a wanton disregard of the rights of

others.” Blount v. Stroud, 395 Ill. App. 3d 8, 20, 915 N.E.2d 925, 938 (2009). The trial court

may submit the issue of punitive damages to the jury only if the plaintiff has made out a

prima facie case for such damages. Franz v. Calaco Development Corp., 352 Ill. App. 3d

1129, 1138, 818 N.E.2d 357, 367 (2004).

¶ 229 In the present case, we find no error in the circuit court’s initial decision to submit the

punitive damages claim to the jury. A circuit court’s decision is an abuse of discretion only

when the ruling is arbitrary, fanciful, or unreasonable or where no reasonable person would

take the view adopted by the trial court. Blum v. Koster, 235 Ill. 2d 21, 919 N.E.2d 333

(2009). Holland presented sufficient evidence from which a jury could find that Schwan’s

acted willfully and wantonly in terminating his employment. Accordingly, we cannot hold

that the circuit court abused its discretion in submitting the issue to the jury.

¶ 230 From the evidence presented at the trial, the jury was entitled to find that Schwan’s,

through its agents and employees, engaged in a course of conduct that was designed to

punish Holland for exercising his rights under the Workers’ Compensation Act and

ultimately terminated his employment as its final act of punishment. Holland presented

sufficient facts from which the jury could conclude that Schwan’s engaged in willful acts that

demonstrated a wanton disregard for his rights under the Workers’ Compensation Act.

¶ 231 It is undisputed that Holland was injured in a job-related accident and that he required

medical treatment, physical therapy, and job restrictions in order for him to recover from the

workplace injury. Holland presented evidence, however, that Schwan’s never honored the

medical restrictions imposed by Holland’s treating physicians and did not accommodate his

work schedule for effective physical therapy. From the outset, Schwan’s required Holland

to work well beyond his medical restrictions. In addition, at the same time that Holland was

required to work beyond his medical restrictions, Schwan’s began running the clock on his

leave allowance under the FMLA because it had purported to have placed him in a light-duty

program. In submitting the issue of punitive damages, the circuit court properly recognized

that this is evidence that the jury could consider in determining whether Schwan’s engaged

in willful and wanton conduct.

¶ 232 When Holland injured his back in August 2008, his treating physician, Dr. Lueking,

suspected that he possibly ruptured a disc in hi

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