Nevertheless, "retaliatory discharge is a narrowly defined cause of action." Hess v. Clarcor, Inc., 237 Ill.App.3d 434, 449, 603 N.E.2d 1262, 1272 (1992). "[A] review of Illinois case law reveals that retaliatory discharge actions are allowed in two settings."

The cases largely relied upon by the defendants in support of this claim involved private employers. Zannis v. Lake Shore Radiologists, Ltd., 73 Ill. App. 3d 901, 905 (1979); Kurle v. Evangelical Hospital Ass'n, 89 Ill. App. 3d 45, 54 (1980); Witt v. Forest Hospital, Inc., 115 Ill. App. 3d 481, 487-88 (1983); Hess v. Clarcor, Inc., 237 Ill. App. 3d 434, 452-53 (1992). Case law exists to support the proposition that reinstatement can in fact be a proper remedy when a public body or public official wrongfully terminates a public employee.

Plaintiff, on the other hand, does provide us with cases in which the evidence from a preliminary injunction hearing was incorporated into evidence at the hearing for a permanent injunction. See Hess v. Clarcor, Inc., 237 Ill. App.3d 434, 603 N.E.2d 1262 (1992). However, in Hess, the parties stipulated to the incorporation of such evidence.

Each Rockwell employee questioned about this matter at trial stated that they were unfamiliar with the incident. Hiatt's burden in this case was to prove retaliatory intent on the part of Rockwell. Hess v. Clarcor, Inc., 237 Ill.App.3d 434, 177 Ill.Dec. 888, 900, 603 N.E.2d 1262, 1274 (1992). Without any evidence that the relevant company employees knew that this happened, no inference of retaliatory intent can be drawn.

The verdict is beyond serious challenge, for the jury was entitled to find that Exxon acted because of the number of hours Spearman missed rather than the reason he missed them, and Illinois does not block an employer from taking account of an employee's inability to work as opposed to his exercise of legal rights. See McEwen v. Delta Air Lines, Inc., 919 F.2d 58 (7th Cir. 1990); Hartlein v. Illinois Power Co., 151 Ill.2d 142, 160, 176 Ill.Dec. 22, 30, 601 N.E.2d 720, 728 (1992) ("[A]n employer may fire an employee for excess absenteeism, even if the absenteeism is caused by a compensable injury. . . . Simply put, `Illinois allows employers to act on the basis of their employee's physical disabilities; it is only the request for benefits that state law puts off limits as a ground of decision.'" (quoting from McEwen, 919 F.2d at 60)); Hess v. Clarcor, Inc., 237 Ill.App.3d 434, 177 Ill.Dec. 888, 603 N.E.2d 1262 (2d Dist. 1992); Miller v. J.M. Jones Co., 225 Ill. App.3d 799, 807, 167 Ill.Dec. 385, 391, 587 N.E.2d 654, 660 (4th Dist. 1992). Spearman's quibbles with the jury instructions do not require analysis beyond citation to these cases.

Zannis v. Lake Shore Radiologists, Ltd., 392 N.E.2d 126, 128-29 (Ill.App. 1979). Accord, Chady v. Solomon Schechter Day Schools, 645 N.E.2d 983, 986 (Ill.App. 1995) (common law prohibition against specific performance as a remedy for breach of employment contract rebuttable only by statutory right to employment); Hess v. Clarcor Inc., 603 N.E.2d 1262, 1275 (Ill.App. 1992) (general rule that a court will not compel an employer to retain an employee in its service); Kurle v. Evangelical Hosp. Ass'n, 411 N.E.2d 326, 332 (Ill.App. 1980) (absent statutory duty, an employer cannot be compelled to reinstate a discharged employee for personal service.);Bloch v. Hillel Torah North Suburban Day School, 426 N.E.2d 976, 977 (Ill.App. 1981) (proper remedy for breach of personal services contract is an action for money damages, not specific performance). See also, Sampson v. Murray, 415 U.S. 61, 88-92 (1974) (absent a statutory requirement of reinstatement or truly extraordinary circumstances, a court will not compel a governmental employer to retain an employee or reinstate a discharged employee); North American Financial Group Ltd v. S.M.R. Enterprises, Inc., 583 F. Supp. 691 (D.C. Ill. 1984) ("hornbook law that a contract for personal services will not be specifically enforced as contrary to public policy," applying Illinois law).

See Ridings v. Riverside Med. Ctr., 537 F.3d 755, 774 (7th Cir. 2008) (citation and quotation marks omitted). Even where a plaintiff demonstrates that the decision-maker knew about his workers' compensation claim, Illinois courts have found a lack of causality where the basis for discharge is valid and nonpretextual. Hess v. Carcor, Inc., 603 N.E.2d 1262, 1273 (Ill. App. Ct. 1992); Slover v. Brown, 488 N.E.2d 1103, 1105 (Ill. App. Ct. 1986). For example, excessive absenteeism generally is as an appropriate grounds for termination, even if a compensable injury caused such absenteeism. Hartlein v. Ill. Power Co., 601 N.E.2d 720, 728 (Ill. 1992).

"A plaintiff must prove that his discharge was causally connected to his exercise of rights under the Workers' Compensation Act." Hess v. Clarcor Incorporated, 603 N.E.2d 1262 (Ill.Ct.App. 1992). "Causality is lacking if the basis for the discharge is valid and nonpretextual.

claim], you know, we ain't paying your doctor" (Cross Dep. 200). But even if more probative force were to be stuffed into that generalized personal impression than it would warrant, any mindset that Pretzer might have had on the subject is irrelevant: No evidence exists to suggest she had any input toward, or any other connection with, the decision to terminate Cross (here Hiatt, 26 F.3d at 768-69 presents a striking parallel, calling for rejection of Cross' argument). Cross' second contention is equally without merit. For starters, Cross has tendered no real support for his conclusory assertion that the filing of a workers' compensation claim is a "sure ticket to eventual discharge" (C. Mem.6). But even if this Court were able to ignore that evidentiary insufficiency, it would not help Cross because his argument misses a basic point. It is well settled that an employer may fire an employee for excessive absenteeism even if the absenteeism is caused by compensable injury (see, e.g., Hess v. Clarcor, Inc., 237 Ill. App.3d 434, 450, 177 Ill.Dec. 888, 603 N.E.2d 1262, 1273 (2d Dist. 1992)). Nothing about Cross' barebones contention is inconsistent with the proof that he (and other Ryder employees) were fired as a result of Ryder's 12 month absence-from-work policy, as Ryder has contended all along.

We decline to follow these cases, as they rely on the effect of the policy on workers and reject the rule of Kelsay [v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978)] that the employee seeking to recover for retaliatory discharge must prove retaliatory intent on the part of the employer.Hess v. Clarcor, Inc., 237 Ill. App.3d 434, 177 Ill.Dec. 888, 900, 603 N.E.2d 1262, 1274 (Ill.App. 2 Dist. 1992); see Swearingen v. Owens-Corning Fiberglas Corp., 968 F.2d 559, 563 n. 3 (5th Cir. 1992); Anderson v. Standard Register Co., 857 S.W.2d 555, 557-58 (Tenn. 1993); Wilmot v. Kaiser Aluminum Chemical Corp., 118 Wn.2d 46, 821 P.2d 18, 31-32 (Wash. 1991). The majority view rejects any per se rule that a discharge for absences caused by work-related injuries violates public policy.