In Retaliatory Discharge Case

Downstate Jury Hammers Employer

for over $4,000,000


3.6 million in punitive damages 

            Recently an Illinois appellate court upheld a Franklin County jury trial award to a mid-manager of a frozen foods company who claimed he had been fired because he had sought workers compensation.  After a seven-day trial the jury awarded Larry Holland $4,260,000, mostly in punitive damages, and against Schwan’s Home Service, Inc.  Schwan’s throughout the case argued that he had never actually been terminated; Holland contended that he had been squeezed out after his job was eliminated.  Holland v. Schwan’s Home Service, Inc.

             In August 2008 Holland fell on his back when slipping on ice while unloading a truck.  Schwan’s put him on its temporary alternative duty program (“TAD”) for 90 days, all of which time apparently was set off against his FMLA leave time.  Although he was on TAD with specific work restrictions as to lifting, his supervisor expected him to perform all of the physical duties of his job, which he testified was most of his responsibilities.  Thereafter Holland consulted his doctor and new restrictions were submitted by the latter, but according to the appeals court decision, Schwan’s management still made no changes in his job duties in conformity with these restrictions.  Holland performed all of his duties and his conditions worsened.  Underwood, his boss, finally made minor changes in his job duties after his doctor provided more substantial restrictions.

            When the first TAD period expired in late October 2008 it was extended. Holland then went on a schedule of reduced hours, and testified that he received numerous medical and insurance related mailings, so many that he stopped opening them.  In a detailed account of the facts the court related that Schwan’s management struggled with his protracted absenteeism and clashed with his doctors about what physical therapy was appropriate.  By early 2009 upper management adopted the thinking that Holland was not being properly treated, that he should follow a course of recovery that involved steroid injections, and that he should return to work to his regular duties – or be let go.  The employer counted his FMLA time as running out because of his “workers compensation leave”, and sought to eliminate his position.   Underwood ceased being his boss and a new manager, who had little opportunity to observe his work, gave Holland low marks for his annual evaluation.  He did not go over the evaluation with Holland, which was the standard practice.

             After Holland actually went for injections, he saw his own doctor at the end of April 2009, who rather than releasing him to return to regular duty, took him off work completely until May 19.  His doctor then cleared him to return to work on May 25.  Meanwhile Schwan’s, “based on [Holland’s] performance and a record of unreliability” assigned his position to someone else, and advised him in writing of this on May 20.  The notice stated that Holland had thirty days to “apply for other positions as they are posted” and that if he did not find another position, his employment was terminated.  Holland called the manager who signed the letter and was told that “the only way [he] could return to employment was to reapply for another position and then be approved by Schwan.  At this same time internal e mails at Schwan indicated there were in fact no positions available, yet Schwan managers testified at trial that a material handler position was created for Holland, and that he failed to apply for it.

             On July 7, 2009 Schwan fired him for his “failure to return to work.”

                        The court of appeals ruled that there was enough evidence to support a finding by the jury that he had been terminated under the terms of the May 20 letter and that it was incumbent upon him to reapply for employment within thirty days.

             Obviously disappointed with a jury verdict that would be a challenge to overturn on appeal, Schwan’s argued that Holland while suing Schwan’s had filed a petition for bankruptcy and, as brought out at trial, had omitted mention of the suit as an asset despite an affirmative duty to report in his bankruptcy filing.  The court rejected this as a form of “estoppels.” 

            Schwan argued that it should have been granted a mistrial since Holland’s lawyer attempted to enter into evidence a ruling that he was entitled to unemployment insurance benefits.  The court ruled that this was not a basis for a mistrial.

             A third argument on appeal was that the trial court should not have let the workers compensation insurance carrier’s redacted file into evidence, on the basis of hearsay.  Holland’s attorney tactically wanted the adjuster’s notes on contact with Schwan personnel to show admissions. The lower court had overruled the hearsay objection subject to the use of the plaintiff on the basis that the adjuster’s comments were admitted only to show Schwan employees’ knowledge, and not for the truth of any matters asserted by the adjuster herself.  A specific entry by the adjuster, after getting a call from a Human Resources manager at Schwan, was clearly troublesome: “[Holland] has been on [light duty] for over 150 days & he knows his head is on the chopping block…”   The appeals court ruled that whether the jury decided this was an assertion of the adjuster or the HR manager, was up to the jury, and that its admission “could not be considered so prejudicial that if affected to the outcome of the seven-day trial.”

             Schwan sought a reversal as to every dime the jury ruled it must pay, and the appeals court refused to disturb the damages awarded in the verdict.