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                                 Appellate Court                           Date: 2017.07.05
                                                                           15:50:51 -05'00'




                  Corah v. The Bruss Co., 2017 IL App (1st) 161030



Appellate Court     JOSEPH CORAH, Plaintiff-Appellant, v. THE BRUSS COMPANY,
Caption             Defendant-Appellee.



District & No.      First District, Third Division
                    Docket No. 1-16-1030



Filed               March 29, 2017



Decision Under      Appeal from the Circuit Court of Cook County, No. 2012-L-003916;
Review              the Hon. James E. Snyder, Judge, presiding.



Judgment            Affirmed.


Counsel on          Frank J. Andreou, of Andreou & Casson, Ltd., of Chicago, for
Appeal              appellant.

                    Chad W. Moeller and Sonya Rosenberg, of Neal Gerber & Eisenberg
                    LLP, of Chicago, for appellee.



Panel               JUSTICE LAVIN delivered the judgment of the court, with opinion.
                    Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the
                    judgment and opinion.
                                              OPINION

¶1       This appeal arises from the trial court’s order granting summary judgment on plaintiff
     Joseph Corah’s whistleblower claim to defendant The Bruss Company, an affiliate of Tyson
     Foods (Tyson). On appeal, plaintiff contends that the trial court erroneously granted
     defendant’s motion for summary judgment because defendant instructed plaintiff to participate
     in an activity that directly violated an injured employee’s rights to benefits under the Workers’
     Compensation Act (820 ILCS 305/1 et seq. (West 2012)). In addition, plaintiff contends that
     the trial court erred in barring plaintiff from claiming emotional distress and punitive damages
     pursuant to the Whistleblower Act (740 ILCS 174/1 et seq. (West 2012)).

¶2                                         BACKGROUND
¶3       We recite only those facts necessary to understand the issues raised on appeal. This case
     arises from plaintiff’s termination by defendant for allegedly refusing to participate in a record
     falsification stemming from employee Yvette Albea’s accident. In April 2012, plaintiff
     commenced this action alleging that his termination from defendant’s employ violated section
     20 of the Whistleblower Act. 740 ILCS 174/20 (West 2012). Specifically, plaintiff argued that
     his termination was a direct result of his refusal to file a false accident investigation report
     (AIR), which would have been used as a basis for Albea’s claim for benefits pursuant to the
     Workers’ Compensation Act.
¶4       Depositions and affidavits submitted during discovery revealed the following. Plaintiff
     testified that defendant employed him in February 2010 as the bone-in-steak production
     supervisor, reporting to plant superintendant Darwin Hanson. Plaintiff’s safety-related
     responsibilities consisted of monthly staff trainings, safety committee discussions about
     potential hazards, and weekly plant walk-throughs. If a workplace injury occurred, the
     supervisor of the department would investigate the incident and complete an AIR. The AIR
     contained a section referred to as the “Five Whys,” which consisted of a series of why
     questions that a supervisor would ask in succession to get to the root cause of an injury or
     illness. Defendant believed a copy of the AIR was kept in-house and additional reports would
     be submitted to corporate, the insurance company, and the Occupational Safety and Health
     Administration (OSHA).
¶5       On September 6, 2010, Albea, a food handler under plaintiff’s supervision, qualified as a
     higher-paid butcher on the band saw. Albea initially performed well, but eventually her speed
     and efficiency diminished as she began to experience lightheadedness and diaphoresis, causing
     her glasses to fog up. Plaintiff repeatedly voiced his concerns to Hanson about Albea’s
     situation, and on September 29, 2010, plaintiff disqualified Albea. But after she allegedly
     threatened to file a union grievance, against plaintiff’s strong objection, Hanson and plant
     superintendent Herman Ochoa allowed Albea to return to the band saw. Shortly thereafter, she
     sustained a laceration of the top of her right, middle finger. Following an investigation of the
     incident, plaintiff concluded that the root cause of Albea’s injury was Ochoa and Hanson’s
     carelessness in putting Albea back on the band saw. When plaintiff met with Hanson, Ochoa,
     and Bob Morisette, defendant’s human resource manager, they all concluded that plaintiff’s
     explanation was not the root cause of Albea’s injury. Thus, plaintiff was instructed to redo the
     AIR to put “the fault on [Albea] versus the fault on poor leadership and choices of upper
     management.” Plaintiff refused and was terminated for insubordination.

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¶6         Following his termination, plaintiff spoke to Albea several times over the telephone. She
       allegedly told plaintiff that defendant instructed Albea to report the accident occurred outside
       the workplace. Plaintiff advised Albea that defendant violated her rights by failing to give her a
       choice in her medical care immediately following the accident when Ieon Bhairoo, another
       production supervisor, took Albea to the immediate care clinic instead of the hospital
       emergency room. Plaintiff, however, did not know if defendant refused to pay Albea’s medical
       bills, challenged whether she was injured at work, or deterred her from seeking workers’
       compensation benefits.
¶7         Hanson testified that after hearing plaintiff’s concerns, he decided to pull Albea off the
       band saw for a couple of days and suggested she consult with a doctor. Albea was upset, but
       Hanson explained it was a temporary decision. When Albea communicated that she was
       feeling better, Hanson consulted with Morisette and they agreed to put her back on the band
       saw. After Albea’s injury, Hanson instructed plaintiff to complete the “Five Whys” portion of
       the AIR to determine the “root cause” of Albea’s accident. Hanson, however, “did not ask
       [plaintiff] to change or delete anything or leave anything out.”
¶8         Ochoa further testified that the purpose of the “Five Whys” portion of the AIR was to
       prevent the same accident from happening again. For instance, Ochoa wanted to know how
       Albea was standing and what position her hands were in. Ochoa terminated plaintiff because
       he “outright refused” to put this type of information in the AIR, even though Ochoa was going
       to allow plaintiff’s typewritten concerns regarding management to be included. Morisette
       reiterated Ochoa’s concerns and testified that the incident was not video recorded because
       Albea was standing in a blind spot. Thereafter, Bhairoo investigated Albea’s injury and
       completed the AIR to defendant’s specifications. He noted that Albea was cutting steak from a
       short loin when a piece jerked and the blade cut her finger.
¶9         Defendant’s safety manager Lorrie Baker attested that she rejected plaintiff’s AIR because
       plaintiff did not complete the “Five Whys” portion by identifying the root cause of Albea’s
       injury. Specifically, Baker “wanted to know how and why Ms. Albea’s finger made contact
       with the saw blade.” AIRs were internal documents that were not submitted to OSHA or any
       other governmental agency. Defendant separately maintained an OSHA Form 300 to record all
       work place injuries and a separate workers’ compensation report. Baker personally prepared
       the workers’ compensation report for Albea’s injury.
¶ 10       Jamie Bolinger, Tyson’s workers’ compensation administrator, attested that in processing
       an employee’s injury he had access to the AIR report, but AIRs were not submitted to a state
       workers’ compensation commission. Tyson and its affiliates were self-insured in the workers’
       compensation area and paid out claims directly from their own funds. Defendant stipulated that
       Albea was injured in the workplace and Bolinger approved Albea’s application for workers’
       compensation benefits without objection. Albea never litigated any claim through the Illinois
       Workers’ Compensation Commission because there was no dispute that she was entitled to
       benefits. Albea also testified that her injury was work-related and she did not recall defendant
       trying to interfere with workers’ compensation benefits.
¶ 11       In April 2014, defendant filed a motion for summary judgment arguing plaintiff failed to
       demonstrate that he refused to participate in any activity that would have resulted in a violation
       of any state or federal law, rule, or regulation required to prevail under the Whistleblower Act.
       Further, plaintiff failed to establish a causal link between his alleged protected activity and his
       termination. After oral arguments, the trial court allowed plaintiff to file a supplemental report

                                                    -3-
       with citation and evidence to any federal or state law, rule, or regulation that would have been
       violated with his alleged refusal to complete the “Five Whys” portion of the AIR. Thereafter,
       plaintiff cited to several statutes under the Workers’ Compensation Act (820 ILCS 305/4(h),
       6(b), 25.5 (West 2012)), as well as violations under OSHA for filing a false statement
       regarding a work-related injury. On September 10, 2014, the trial court granted defendant’s
       motion for summary judgment in regards to plaintiff’s claims for emotional distress and
       punitive damages but granted leave for plaintiff to file an amended complaint to comport with
       proofs. Defendant then moved to strike the first amended complaint. On December 18, 2014,
       the trial court denied defendant’s request, but ordered plaintiff to file a second amended
       complaint with no references to violations of OSHA. Plaintiff complied and included a claim
       for common-law retaliatory discharge.
¶ 12       Thus, in October 2015, defendant filed a second motion for summary judgment. On April
       7, 2016, after briefing and a hearing, the trial court granted summary judgment regarding the
       whistleblower claim holding that plaintiff did not identify how or what particular statute his
       conduct would have violated, other than the Workers’ Compensation Act in general. The court,
       however, allowed plaintiff’s common-law retaliatory discharge claim to proceed. On March 8,
       2016, pursuant to section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-1009 (West
       2012)), plaintiff voluntarily dismissed his second amended complaint.1 Thereafter, plaintiff
       filed a timely notice of appeal as to the trial court’s April 7, 2016, order granting summary
       judgment to defendant on the whistleblower claim. See Dubina v. Mesirow Realty
       Development, Inc., 178 Ill. 2d 496, 503 (1997) (“[t]he order of voluntary dismissal, because it
       disposed of all matters pending before the circuit court, rendered all orders which were final in
       nature, but which were not previously appealable, immediately final and appealable”).

¶ 13                                              ANALYSIS
¶ 14        Plaintiff contends that the trial court erroneously granted defendant’s motion for summary
       judgment because defendant asked plaintiff to falsify the AIR which directly violated Albea’s
       rights to benefits under the Workers’ Compensation Act. Summary judgment is proper where
       the pleadings, admissions, depositions, and affidavits demonstrate there is no genuine issue as
       to any material fact so that the movant is entitled to judgment as a matter of law. Ioerger v.
       Halverson Construction Co., 232 Ill. 2d 196, 201 (2008); 735 ILCS 5/2-1005 (West 2012). In
       determining whether a genuine issue of material fact exists, the court must consider such items
       strictly against the movant and liberally in favor of its opponent. Williams v. Manchester, 228
       Ill. 2d 404, 417 (2008). We review the trial court’s order granting summary judgment de novo.
       Weather-Tite, Inc. v. University of St. Francis, 233 Ill. 2d 385, 389 (2009).
¶ 15        In order to prevail on a claim under section 20 of the Whistleblower Act, a plaintiff must
       establish that (1) he refused to participate in an activity that would result in a violation of a state
       or federal law, rule, or regulation and (2) his employer retaliated against him because of the
       refusal. 740 ILCS 174/20 (West 2012); Young v. Alden Gardens of Waterford, LLC, 2015 IL
       App (1st) 131887, ¶ 48. “This court has held that the language of section 20 is unambiguous
       and that a ‘plaintiff must actually refuse to participate’ in an activity that would violate a law or
       regulation.” Lucas v. County of Cook, 2013 IL App (1st) 113052, ¶ 25 (quoting Sardiga v.

           1
            In June 2016, plaintiff refilled his common law retaliatory claim which is pending below and not at
       issue on this appeal.

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       Northern Trust Co., 409 Ill. App. 3d 56, 62 (2011)). Plaintiff bears the burden of establishing
       his claim under the Whistleblower Act. Sardiga, 409 Ill. App. 3d at 64-65.
¶ 16       Here, plaintiff suggests that defendant violated section 6(b) of the Workers’ Compensation
       Act by asking plaintiff to file a false AIR report. 820 ILCS 305/6(b) (West 2012) (“[e]very
       employer *** shall maintain accurate records of work-related deaths, injuries and illness”).
       While we appreciate that plaintiff’s interpretation of Albea’s accident was caused by plaintiff’s
       superiors allowing Albea to remain qualified on the band saw, this does not mean that
       defendant instructed plaintiff to prepare a false AIR of Albea’s accident. The completed AIR,
       which was prepared by Bhairoo after plaintiff refused, stated that Albea “was cutting [the] club
       end on a short loin when [the] blade caught the glove [and] pulled the right middle finger into
       the saw blade.” This explanation was the root cause of Albea’s injury and, thus, did not result
       in a fraudulent AIR. In making our determination, we find Lucas dispositive.
¶ 17       In Lucas, the gynecologist plaintiff filed a whistleblower claim against the defendant after
       she was terminated for refusing to treat male patients with sexually transmitted diseases
       (STDs) or attend training to treat male patients with STDs. Lucas, 2013 IL App (1st) 113052,
       ¶ 1. Specifically, the plaintiff alleged that the defendant violated title 68, section 1285.240 of
       the Administrative Code (68 Ill. Adm. Code 1285.240 (2005)) “ ‘by requiring [the plaintiff] to
       perform services as a physician without adequate training’ and for offering her inadequate
       training.” Lucas, 2013 IL App (1st) 113052, ¶ 7. The reviewing court determined that the
       plaintiff’s reliance on this section was misplaced because it “lists standards that the Medical
       Disciplinary Board considers when disciplining physicians licensed under the Medical
       Practice Act of 1987.” Id. ¶ 28. The section did not prohibit the defendant’s request that the
       plaintiff “treat male patients or attend training to treat male patients.” Id. Thus, since the
       plaintiff failed to establish that the defendant asked her to participate in an illegal activity,
       summary judgment was appropriate. Id. ¶ 30. See Ulm v. Memorial Medical Center, 2012 IL
       App (4th) 110421, ¶ 36 (the trial court did not err by granting the defendant summary
       judgment on the plaintiff’s whistleblower claim when the plaintiff’s refusal to sign a
       certification accompanying a subpoenaed medical record did not violate any law “even
       assuming [the] defendant fired [the plaintiff] in retaliation for so refusing”); Sardiga, 409 Ill.
       App. 3d at 64 (the evidence in the record failed to establish that the plaintiff’s refusal to
       participate in a “poor business practice” was sufficient to satisfy the requirements of the
       Whistleblower Act).
¶ 18       Further, we find plaintiff’s sole reliance on Young misplaced. In Young, the plaintiff nurse
       filed a whistleblower claim against the defendant employer, a licensed long-term care facility,
       for terminating the plaintiff’s employment after she refused to falsify residents’ medication
       administration records at her superior’s request. Young, 2015 IL App (1st) 131887, ¶¶ 3-7. The
       reviewing court observed that “[f]alsifying a patient’s medical record with fabricated results of
       blood glucose tests would have warranted revocation of [the plaintiff’s] license” under
       provisions of the Nurse Practice Act (225 ILCS 65/50-1 et seq. (West 2012)). Young, 2015 IL
       App (1st) 131887, ¶ 50. Therefore, the court concluded that the practice the defendant asked
       the plaintiff to engage in was illegal. In the instant case, as stated above, defendant did not ask
       plaintiff to falsify the AIR but merely to include the technical cause of Albea’s accident. In
       addition, defendant’s safety manager Baker established the AIR was an internal document that
       would not have been submitted to any government agency. And in any event, testimony from
       plaintiff’s superiors revealed that defendant was going to allow plaintiff’s typewritten notes

                                                    -5-
       into the AIR voicing plaintiff’s concerns about Albea being permitted to remain qualified on
       the band saw.
¶ 19        Contrary to plaintiff’s assertion, the record demonstrates that defendant did not interfere
       with Albea’s rights to procure benefits under section 4(h) of the Workers’ Compensation Act.
       820 ILCS 305/4(h) (West 2012) (“[i]t shall be unlawful for any employer *** to interfere with,
       restrain or coerce an employee in any manner whatsoever in the exercise of the rights or
       remedies granted to him or her”). Although plaintiff suggests that defendant asked Albea to
       report her injury occurred outside the workplace, this is unsupported by the record. Baker
       personally prepared the workers’ compensation report for Albea’s injury and Tyson
       administrator Bolinger approved Albea’s application for workers’ compensation benefits
       without any objection from defendant. Even plaintiff acknowledged that defendant never
       asked plaintiff to misstate where Albea’s injury occurred. Additionally, there is no evidence
       that defendant interfered with Albea seeking her preferred choice of medical treatment. Nor
       does Albea recall defendant interfering with her rights to workers’ compensation benefits.
       Moreover, we fail to see how defendant’s alleged treatment of Albea after plaintiff’s
       termination is relevant to whether or not the activity defendant wanted plaintiff to engage in,
       i.e., redoing the “Five Whys” portion of the AIR, violated any law, rule, or regulation.
       Accordingly, plaintiff fails to establish that defendant instructed plaintiff to engage in unlawful
       behavior or interfered with Albea’s rights under the Workers’ Compensation Act. See 820
       ILCS 305/25.5 (West 2012) (making it unlawful for any employer to interfere with a worker’s
       rights to benefits). Accordingly, we need not consider whether defendant retaliated against
       plaintiff. See also Michael v. Precision Alliance Group, LLC, 2014 IL 117376, ¶ 32 (the
       supreme court noted the burden rests solely on the plaintiff to prove that the cause of the
       discharge was retaliatory).
¶ 20        Plaintiff next contends that the trial court erred in dismissing his claims for emotional
       distress and punitive damages when the court ruled on defendant’s first motion for summary
       judgment on September 10, 2014. Likewise, plaintiff suggests that the trial court erred in its
       December 18, 2014, order instructing plaintiff to remove any references to OSHA from his
       second amended complaint. Defendant, however, argues that we lack jurisdiction to review
       these additional orders. Illinois Supreme Court Rule 303(b)(2) provides that a notice of appeal
       “shall specify the judgment or part thereof or other orders appealed from and the relief sought
       from the reviewing court.” Ill. S. Ct. R. 303(b)(2) (eff. June 4, 2008). Unless there is a properly
       filed notice of appeal, the appellate court lacks jurisdiction over the matter and is obliged to
       dismiss the appeal. Calumet School District No. 132 v. Illinois Workers’ Compensation
       Comm’n, 2016 IL App (1st) 153034WC, ¶ 37. A notice of appeal confers jurisdiction on a
       court of review to consider only the judgments or parts of judgments specified in the notice of
       appeal. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 176 (2011). Thus, “[t]he purpose of
       the notice of appeal is to inform the prevailing party that the other party seeks review of the
       trial court’s decision.” (Internal quotation marks omitted.) Id.
¶ 21        In the case sub judice, plaintiff did not include the trial court’s September 10, 2014, order
       or the December 18, 2014, order in his notice of appeal. Therefore, defendant was only put on
       notice that plaintiff would be seeking review on the trial court’s April 7, 2016, order granting
       defendant summary judgment on the whistleblower claim. Therefore, we find this court lacks
       jurisdiction to consider the dismissal of the claims involving emotional distress and punitive
       damages. See Alpha Gamma Rho Alumni v. People ex rel. Boylan, 322 Ill. App. 3d 310, 313

                                                    -6-
       (2001) (“[w]hen an appeal is taken from *** a specified judgment, the appellate court acquires
       no jurisdiction to review other judgments or parts” of judgments not specified or fairly inferred
       from the notice). As to the OSHA claim, however, it was arguably inferred from the notice and
       we find defendant suffers no prejudice for us to address it here. See In re Marriage of O’Brien,
       2011 IL 109039, ¶ 22 (we will liberally construe a notice of appeal “ ‘if the notice, when
       considered as a whole, fairly and adequately sets out the judgment complained of and the relief
       sought so that the successful party is advised of the nature of the appeal’ ” (quoting Burtell v.
       First Charter Service Corp., 76 Ill. 2d 427, 433-34 (1979))).
¶ 22       In plaintiff’s first amended complaint, plaintiff cites to several provisions under OSHA,
       arguing that “defendant attempted to force plaintiff to create a false account of a workplace
       injury by forcing plaintiff to recreate the facts and circumstances surrounding Ms. Albea’s
       injuries in a manner that was favorable to defendant and would have provided false
       information to OSHA if an investigation occurred.” But plaintiff fails to explain how
       defendant instructing plaintiff to rewrite his AIR to identify how Albea’s finger made contact
       with the band saw blade, i.e., the root cause of Albea’s injury, equates to defendant asking
       plaintiff to file a false report under OSHA that would have impeded an investigation. The
       record also suggests that AIRs were internal documents not submitted to OSHA as defendant
       maintained a separate OSHA Form 300 to record all work-related injuries. In addition, plaintiff
       fails to further develop his argument on appeal, and we need not consider this matter further.
       See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); Heupel v. Jenkins, 379 Ill. App. 3d 893, 900
       (2008) (failure to assert a well-reasoned argument supported by legal authority results in
       waiver). Consequently, as the record presents no genuine issue of material fact, defendant was
       entitled to summary judgment as a matter of law.

¶ 23                                      CONCLUSION
¶ 24      Based on the foregoing, we affirm the judgment of the circuit court of Cook County.

¶ 25      Affirmed.




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