dissenting:
Plaintiff was discharged from his employment with defendant after he filed a claim for workers’ compensation. He subsequently brought suit against defendant for retaliatory discharge. At trial, defendant contended that plaintiff was not fired for filing a workers’ compensation claim. Rather, he was fired for demanding that he be paid on a date sooner than that dictated by company policy. The trial court allowed plaintiff to introduce evidence that the payroll policy violated the Illinois Wage Payment and Collection Act (Wage Act) (820 ILCS 115/4 (West 1994) (providing that “[a] 11 wages earned by any employee during a weekly pay period shall be paid not later than 7 days after the end of the weekly pay period in which the wages were earned”)). The trial court also gave the jury an instruction explaining the requirements of the Wage Act. The jury returned a verdict for plaintiff. In a split decision, the appellate court reversed.
The majority here holds that the jury’s verdict must be reversed because evidence concerning the Wage Act was irrelevant to plaintiffs cause of action. This is incorrect.
The gist of the employer’s defense is that plaintiff was fired for improperly demanding premature payment of wages prior to August 11, 1989, for work which plaintiff performed on July 28 and 29, 1989. In that connection, the trial court permitted plaintiff to introduce evidence that defendant would have violated the Wage Act if it had in fact waited until August 11 to pay plaintiff for this work.
The majority contends that this evidence concerning the Wage Act was irrelevant to plaintiffs allegation that he was discharged for filing a workers’ compensation claim. To the contrary, evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. People v. Gonzalez, 142 Ill. 2d 481, 487-88 (1991). As the majority notes, in an action for retaliatory discharge, the defendant/employer may choose to argue that it discharged the plaintiff for a reason other than that alleged in the complaint. 184 Ill. 2d at 335-36. As the majority also notes, however, in order to be successful in such a defense, the defendant must convince the trier of fact that its proffered reason for discharge is “nonpretextual.” 184 Ill. 2d at 336.
The fact that defendant would have violated the Wage Act by refusing to pay plaintiff before August 11 makes it more likely that defendant’s proffered reason for discharge was pretextual. The majority nevertheless contends that evidence of a potential Wage Act violation was irrelevant to the issue of pretext because, at the time of the dispute, defendant claims it was unaware that its chosen method of payment violated the Act. Whether defendant was in fact aware of this violation and the significance of any such awareness, however, are questions of fact committed to the jury’s determination. The majority’s resolution of these questions in a manner contrary to the verdict illegitimately usurps the jury’s function.
Accordingly, I would reverse the decision of the appellate court and affirm the judgment entered by the circuit court.
JUSTICES HARRISON and NICKELS join in this dissent.