In the closing days of its May term, the Illinois Supreme Court agreed to clarify a fundamental issue for the employment bar: what are the parties’ respective burdens of proof in a case for wrongful termination?
Michael v. Precision Alliance Group, LLC involves an agricultural company in the business of raising, packaging and distributing seeds for commercial agricultural use. As part of that business, the company packs soybeans into 2,000 pound bags. The packing system involved a hopper with a set point – when the set point is reached, the operator opens a gate which releases the beans into a bag, which is then weighed. The company claimed that the bags were typically filled with slightly more than the required 2,000 pounds in order to compensate for normal seed shrinkage, and one of the plaintiffs seemed to agree, testifying that the set point was normally set at between 2,007 and 2,010 pounds.
In the fall of 2002, a new individual took charge of bagging. One of the plaintiffs noticed that the set point was now several pounds less. Drivers started noticing that loaded trucks seemed lighter. The company weighed bags from designated lots; several were below 2,000 pounds, a few by as much as 20 pounds.
After the company’s spot test, the three plaintiffs began secretly weighing bags without the company’s knowledge. Many allegedly weighed light. A former employee reported the matter to the state Department of Agriculture, purportedly getting lot numbers and locations of underweight bags from the plaintiffs.
In February 2003, the state inspectors showed up at the company’s plant, issuing five stop-sale orders during the first day of inspections. The company stopped production for 10 days while employees weighed every bag in the warehouse. Roughly half were underweight. As a result of the company’s prompt response to the investigation, the State lifted the stop-sale orders and ended the investigation without issuing any penalties.
During the inspections, the assistant plant manager began investigating where the complaint might have come from. He testified that he was simply trying to figure out why the bags were underweight, but he quickly concluded that an employee or former employee had to be the source of the complaint.
One month after the state’s visit to the plant, one of the plaintiffs was involved in a forklift collision with another employee. Nobody was injured and the forklift wasn’t damaged, but the plaintiff was fired. Supposedly, employees hadn’t been fired for previous forklift incidents, and the other employee involved in this particular accident wasn’t disciplined. Around the same time, management decided to eliminate four positions, claiming that it was necessary to respond to a general slowdown in business. The two remaining plaintiffs were fired as part of that reduction in force.
The plaintiffs sued for common law retaliatory discharge. The defendant employer moved for summary judgment. The Circuit Court granted the motion, but the Appellate Court reversed. The Circuit Court later conducted a bench trial on the merits and entered judgment on behalf of the defendant, finding that although the plaintiffs had offered some evidence of an unlawful motive for termination, the defendant had articulated a valid non-pretextual reason why the plaintiffs were fired. The plaintiffs then appealed a second time, and the Fifth District reversed once again.
The trial court had properly required the plaintiff to prove the initial three elements of the tort, the court found: (1) protected activity; (2) adverse employment action by the defendants; and (3) a causal connection between the plaintiff’s protected activity and the adverse action. But the court had erred, according to the Fifth District, by requiring the plaintiff to prove that the reasons articulated by the employer for the plaintiffs’ firing were merely pretexts. “[T]he trial court erroneously increased plaintiffs’ burden,” the Court wrote, requiring them to provide not only the elements of their own charge, but to disprove the defendants’ defense too.
Before the Supreme Court, the defendants seem likely to argue that the Fifth District’s holding was both unclear and unworkable, while the Circuit Court’s holding was consistent with the federal burden-shifting test articulated by the United States Supreme Court in McDonnell-Douglas and its progeny. Federal discrimination and retaliation cases proceed in three steps: (1) the plaintiff must establish a prima facie case of discrimination or retaliation; (2) the defendant must produce a legitimate non-discriminatory reason for the adverse employment action; and (3) the plaintiff must then raise a triable dispute of fact for the proposition that the defendant’s proferred justification is a mere pretext. The Appellate Court in Michael held that assigning the third step to the plaintiff amounted to requiring the plaintiff to disprove the defendant’s defense, but the defendants are likely to argue that once the employer offers prima facie evidence sufficient to establish a legitimate reason for discharge, the defendant has proven its defense. To require the defendant to go further and negate the plaintiff’s mere allegation of pretext is to require the defendant to prove a negative – always a heavy burden in the law, and a test likely to send many cases to juries that have no place getting that far.