dissenting:
I respectfully dissent. I would affirm the judgment of the trial court.
The Wage Act provides that "[a]ll 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.” 820 ILCS 115/4 (West 1994). Clemons worked Friday, July 28, and Saturday, July 29. The pay period that included those days ended Wednesday, August 2. On the next payday, Friday, August 4, while he was on vacation, Clemons asked to be paid for July 28 and 29. Mechanical responded that he would not be paid for those days until Friday, August 11. Mechanical finally did pay Clemons on August 4, but discharged him that same day. The Wage Act did not require that Clemons be paid on August 4, but the Wage Act did not allow Mechanical to wait until August 11.
The trial court held that an illegal defense is no defense and allowed the jury to determine whether Mechanical’s defense was an illegal defense, whether the Wage Act had been violated. If Mechanical had conceded that it had violated the Wage Act, the trial court apparently would have kept out any evidence of that reason for firing Clemons, whether that evidence was presented by Clemons or by Mechanical. In determining that an illegal defense is no defense, the trial court relied in part upon our statement in Miller that the employer should adduce "some evidence of lawful motivation for the challenged action.” Miller, 225 Ill. App. 3d at 803, 587 N.E.2d at 658. Miller, however, was referring to the three-tier formula of the Civil Rights Act cases, which I agree should not be applied to retaliatory discharge cases. I also agree with the majority (292 Ill. App. 3d at 250) that "valid basis” or "lawful motivation,” as used in earlier cases, simply meant a basis or motivation that would defeat a claim of retaliatory discharge under Illinois law.
Nevertheless, the question whether an illegal defense can be a defense in a retaliatory discharge case must be addressed. Should an employer really be allowed to profit from its own illegal conduct and tell the jury, "I fired plaintiff because he was black,” or "I fired plaintiff because she was a woman”? Such defenses are usually counterproductive because they are offensive to juries, but in the present case the jury would not have known Mechanical’s conduct was (arguably) illegal unless it were given that information. The statement is sometimes made that at common law an employee at will can be discharged at any time, "for a good reason, a bad reason, or no reason at all.” Ryherd v. General Cable Co., 124 Ill. 2d 418, 427, 530 N.E.2d 431, 435 (1988). The fact that a particular "bad reason” cannot be used offensively in a retaliatory discharge case, however, does not require that such "bad reason” be allowed to be used defensively. It is possible to limit the employee’s argument to the question of whether he was fired in violation of the Workers’ Compensation Act without allowing the employer to argue the employee was fired because he was black, et cetera. Of course, the failure to present a reason for discharge will make it difficult for the employer to succeed. See Wieseman v. Kienstra, Inc., 237 Ill. App. 3d 721, 733, 604 N.E.2d 1126, 1135 (1992) (Chapman, J., dissenting) (most cases find in worker’s favor unless employer had a reason for discharge).
Mechanical argues that an employee has other forums and remedies available if he or she is fired because of race, gender, age, disability, or in violation of the Wage Act. It is common, however, for wrongful acts to carry collateral consequences. The law is reluctant to allow a wrongdoer to profit from his own wrong, particularly where he seeks to enlist the aid of the court in doing so. For example, the courts will not enforce a check given in payment of a gambling debt. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 119, 619 N.E.2d 732, 737 (1993). The fact that other remedies exist is no answer to the question whether an illegal defense can be a defense.
Mechanical argues that there can be no showing that the Wage Act has been violated without a labor board finding to that effect. That is not correct. Evidence of other crimes, wrongs, or acts may be admitted without showing that there has been a conviction. The proponent must show that a crime took place and that the defendant committed it, but that proof need not be beyond a reasonable doubt, only by more than a mere suspicion. People v. Oaks, 169 Ill. 2d 409, 454, 662 N.E.2d 1328, 1348 (1996).
Even if an illegal defense is a defense, I disagree with the majority’s argument that Mechanical’s violation of the Wage Act was "wholly irrelevant.” 292 Ill. App. 3d at 248. The issue is whether Mechanical’s motive was to discharge Clemons because of his workers’ compensation claim or whether the motive was to discharge him because of his complaints about being paid late (or perhaps both). When a litigant argues it had a certain motive in performing an act, it is relevant that such motive would result in a violation of the criminal law. We should not assume that Mechanical is equally willing to engage in conduct that violates the criminal law and conduct that does not. The criminal code may be viewed as a standard of conduct by which most individuals and employers abide. Evidence is relevant if it has any tendency to make the existence of any fact of consequence more or less probable. Relevant evidence is admissible even when it is prejudicial to the opponent. See People v. Kidd, 175 Ill. 2d 1, 37, 675 N.E.2d 910, 927 (1996) (gruesome photographs). Evidence of other crimes is admissible if it is relevant for any purpose other than to show propensity to commit crime. People v. Jones, 156 Ill. 2d 225, 239, 620 N.E.2d 325, 330 (1993). Mechanical should not be allowed to avoid the relevant implications of its actions just because those actions put Mechanical in a bad light.
The trial court took the position that only a violation of the Workers’ Compensation Act, and not a violation of the Wage Act, could be a basis for recovery in- a retaliatory discharge action. Under that view, the evidence of a Wage Act violation was admissible for some purposes, but could not be the basis for a finding of liability or an award of damages, and a limiting instruction was necessary. Defendant’s jury instruction No. 40 would have told the jury that employment was presumed to be at will, that at-will employees could be terminated for any reason or no reason at all, and "if you find Dennis Clemons’ filing of a workers’ compensation claim was not the determinative factor in Dennis Clemons’ discharge, you must decide in favor of Mechanical Devices.” The jury instruction had some merit, although a- better statement would have been whether the claim was "a determinative factor.” The court did give defendant’s jury instruction No. 10, listing the elements Clemons had to prove, including "that Dennis Clemons’ filing of a claim under the Workers’ Compensation Act resulted in his discharge from his employment.” A limiting instruction was necessary in this case, and non-IPI jury instructions had to be given (there are no specific instructions for retaliatory discharge in IPI), but I cannot say that defendant’s jury instruction No. 40 would have improved upon the instructions already given. Under defendant’s jury instruction No. 10, defendant was free to argue to the jury that a violation of the Wage Act could not be a basis for liability and that the jury had to find that defendant intended to retaliate for plaintiffs filing of a workers’ compensation claim before plaintiff could recover.
A major concern here is the argument that plaintiff sandbagged defendant, that the pleadings alleged a violation of the Workers’ Compensation Act, but plaintiff proved up a violation of the Wage Act. Under the facts of this case it would have been improper for plaintiff to amend his pleadings to change theories at the close of the evidence. See Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 467-68, 605 N.E.2d 493, 508 (1992) (other party would be prejudiced or surprised by the proposed amendment). The trial court made it clear, however, that it was not allowing a change of theories, that there was no retaliatory discharge action for a violation of the Wage Act. Because there was no change of theories, the amendment was not particularly significant. Defendant argues the jury was nevertheless confused and impermissibly awarded damages for a violation of the Wage Act. The trial court recognized that an award on that basis would be improper and took the steps it deemed necessary to prevent it. Defendant does not suggest other steps that should have been taken, except to argue that evidence of the Wage Act violation should
have been excluded entirely, with which I disagree. If the evidence of the Wage Act violation is viewed, not as a change of theory, but as impeachment of defendant’s witnesses, there was no unfair prejudice or surprise in this case. See Flynn v. Edmonds, 236 Ill. App. 3d 770, 785, 602 N.E.2d 880, 889 (1992) (if impeaching information must be disclosed before trial, witness will either not appear or will change testimony).
Mechanical argues that its office manager, Fillingham, was improperly "allowed” to interpret statutory law. It is certainly improper for a witness to testify what the law is. The jury takes its law from instructions given it by the judge, not from the testimony of witnesses. See Bloomington, 233 Ill. App. 3d at 735, 599 N.E.2d at 69. When the issue is whether a party has knowingly violated a statute, however, it is appropriate to ask that party (1) whether it was aware of the statute, (2) is this a common statute of which employers should be aware, (3) whether it agrees the statute was violated, and (4) how can it be said the statute was not violated when the statute provides X, and the facts are Y? See Selby v. Danville Pepsi-Cola Bottling Co., 169 Ill. App. 3d 427, 437, 523 N.E.2d 697, 702 (1988). If Clemons were really attempting to have a witness interpret the law, it would be unlikely that he would use Mechanical’s office manager as that witness.
Mechanical complains that the court read a portion of the Wage Act to the jury as a part of its instructions, but assuming the Wage Act was relevant at all to the case, it had to be brought to the jury’s attention in some manner. The proper way for a jury to be told of the law that applies to the case is through the instructions given it by the court. I do not consider the instruction given to be an IPI Civil No. 60.01 instruction.
Fillingham testified she voided some of the health insurance checks and sent letters to health providers indicating that Mechanical would not pay health-related medical bills. That testimony shows malice on the part of Mechanical. Clemons was entitled to payment of his bills from one source or the other, the health insurer or the workers’ compensation insurer. If the claim were later determined to be job-related, the insurer would have been entitled to a credit for payments already made under the health policy. When Fillingham returned to the stand, she changed her testimony and said that the medical bills were paid under the health policy. Clemons testified the bills were not paid and were turned over to a collection agency. Mechanical then attempted to show the bills were paid by the health insurer for Clemons’ wife, after some period of time had elapsed. I agree that testimony was getting pretty far afield and the trial court acted within its discretion in excluding it.
It is not clear that the supreme court, when it is faced with the issue, will hold that firing an employee who complains about a violation of the Wage Act cannot give rise to a retaliatory discharge action. The Wage Act provides:
"Any employer *** who knowingly discharges or in any other manner knowingly discriminates against any employee because that employee has made a complaint to his employer *** that he or she has not been paid in accordance with the provisions of this Act *** is guilty, upon conviction, of a Class C misdemeanor.” 820 ILCS 115/14(c) (West 1994).
In Barr the plaintiffs alleged various constitutional rights were violated when they were discharged for their activities in connection with a labor dispute. The supreme court contrasted those general allegations with Kelsay, where "the public policy of allowing injured workers to freely file workmen’s compensation claims was clearly mandated by the legislative enactment of the Workmen’s Compensation Act.” Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 525-26, 478 N.E.2d 1354, 1356 (1985). In the present case, the legislature has clearly indicated that it is contrary to the public policy of the state to discharge workers who complain about violations of the Wage Act. Abrams v. Echlin Corp., 174 Ill. App. 3d 434, 528 N.E.2d 429 (1988), did not hold that violations of the Wage Act may never be the basis of a retaliatory discharge action. Abrams affirmed the dismissal of the complaint before it because the plaintiff did not identify any provisions of the Wage Act that were violated when the employer indicated it would set off commissions paid on returned merchandise. Abrams, 174 Ill. App. 3d at 440, 528 N.E.2d at 433. Plaintiff’s right to commissions was not dealt with by the Wage Act, but by a private agreement between the parties. Kavanagh v. KLM Royal Dutch Airlines, 566 F. Supp. 242 (N.D. Ill. 1983), is similar. In contrast to Abrams and Kavanagh, there is a section of the Wage Act that expressly prohibits what was done here. It could be argued that the dispute whether Clemons would receive two days’ pay on August 4 or on August 11 was trivial, but Clemons was fired because of that dispute, according to Mechanical.
Complicated questions are presented by this case. The trial court dealt with those questions as they arose, without the advantages of reflection that we have. This was not a perfect trial, but the parties are not entitled to a perfect trial. I cannot say the trial court abused its discretion in its rulings or that the jury’s decision was contrary to the manifest weight of the evidence. I would affirm.