Jeff Phillips v. Continental Tire the Americas , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2199
J EFF P HILLIPS,
Plaintiff‐Appellant,
v.
C ONTINENTAL T IRE T HE A MERICAS , LLC,
Defendant‐Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:12‐cv‐00307‐JPG‐SCW — J. Phil Gilbert, Judge.
____________________
A RGUED D ECEMBER 5, 2013 — D ECIDED FEBRUARY 14, 2014
____________________
Before W OOD, Chief Judge, and S YKES and T INDER , Circuit
Judges.
T INDER , Circuit Judge. Continental Tire The Americas,
LLC (CTA) terminated Jeff Phillips’s employment after he
refused to take a drug test upon his initiation of a workers’
compensation claim. Phillips sued, alleging that CTA retali‐
ated against him for seeking workers’ compensation benefits
in violation of Illinois law. The district court granted CTA’s

-- 1 of 8 --

2 No. 13‐2199
motion for summary judgment, and Phillips appealed. For
the reasons that follow, we affirm.
I. Background
CTA has a tire manufacturing facility in Mt. Vernon, Illi‐
nois. Phillips worked there as a passenger general trucker
for twenty‐two years until his discharge. The Mt. Vernon fa‐
cility has a health services department that provides medical
treatment to sick or injured employees. In April 2010, Phil‐
lips visited the health services department to report that his
fingers went numb at work and to initiate a workers’ com‐
pensation claim. At the time, CTA had a written substance
abuse policy that required drug testing in certain situations:
1. Pre‐employment testing; 2. Random testing for initial 12
months of employment; 3. For‐cause testing; 4. OSHA re‐
cordable accident; 5. Transportable injury; 6. Serious equip‐
ment/property personal damage incident; and 7. Initiation of
workers’ compensation claim. The policy provided that
“[r]efusal to submit to testing will be cause for immediate
suspension pending termination.” An injured employee
could receive medical treatment in the health services de‐
partment and return to work without being required to
submit to a drug test if (a) the employee did not seek to initi‐
ate a workers’ compensation claim; and (b) the situation did
not fall into one of the other categories for which drug test‐
ing was required under company policy. But an employee
who sought to initiate a workers’ compensation claim was
required to submit to drug testing or be immediately sus‐
pended pending termination, regardless of whether he re‐
ceived treatment or services at the health services depart‐
ment.

-- 2 of 8 --

No. 13‐2199 3
Phillips was informed that he had to submit to a drug
test before he could initiate a workers’ compensation claim
and he was shown the CTA drug testing policy. He also was
advised that if he didn’t take the drug test, his employment
would be terminated. Nonetheless, he refused to take the
drug test because he didn’t think that it should be a neces‐
sary consequence of filing a workers’ compensation claim.
Phillips was terminated from his employment with CTA
for refusing to submit to drug testing upon his initiation of a
workers’ compensation claim. CTA’s discharge letter states:
“As a result of your refusal to perform the required drug test
on April 21, 2010, this letter is serving as notification that
your employment is being terminated immediately for viola‐
tion of Company policy,” in particular a “violation of the
company’s substance abuse policy.” When asked at his depo‐
sition why CTA terminated him, Phillips stated, “Because I
didn’t submit to a drug test.” And when asked if he was con‐
tending that CTA fired him because he filed a workers’ com‐
pensation claim, he answered, “They fired me because I
didn’t submit to a drug test.” Phillips agreed that he had no
evidence or information that there was a different reason for
his discharge. It is his understanding that he would still be
employed at CTA if he had taken the drug test. Even though
he refused to submit to the test, Phillips did file a workers’
compensation claim. At oral argument CTA’s counsel ad‐
vised the court that Phillips eventually received workers’
compensation benefits.
II. Discussion
We review the district court’s summary judgment ruling
de novo, construing the evidence and drawing reasonable in‐
ferences in favor of the party against whom the motion was

-- 3 of 8 --

4 No. 13‐2199
made. Beatty v. Olin Corp., 693 F.3d 750, 752 (7th Cir. 2012).
Illinois law recognizes a “cause of action for retaliatory dis‐
charge where an employee is terminated because of his actu‐
al or anticipated exercise of workers’ compensation rights.”
Id. at 753. To establish a retaliatory discharge claim, a plain‐
tiff must prove: “(1) that he was an employee before the inju‐
ry; (2) that he exercised a right granted by the Workers’
Compensation Act; and (3) that he was discharged and that
the discharge was causally related to his [pursuit of] a claim
under the Workers’ Compensation Act.” Id. (quoting Clemons
v. Mechanical Devices Co., 704 N.E.2d 403, 406 (Ill. 1998)). The
only issue in this case is causation.
Causation “requires more than a discharge in connection
with filing a claim.” Marin v. Am. Meat Packing Co., 562
N.E.2d 282, 286 (Ill. App. Ct. 1990) (citation omitted). The
“ultimate issue” regarding causation is “the employer’s mo‐
tive in discharging the employee.” Beatty, 693 N.E.2d at 753
(quoting Clemons, 704 N.E.2d at 406); see also Brooks v. Pactiv
Corp., 729 F.3d 758, 768 (7th Cir. 2013) (“[T]he employer …
may … be liable for retaliatory discharge if the actual moti‐
vation for the termination was the employee’s pursuit of a
workers’ compensation claim.”). To establish causation, the
employee “must affirmatively show that the discharge was
primarily in retaliation for [his] exercise of a protected
right.” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 774 (7th Cir.
2012) (quotation and citation omitted).
Phillips did not make this showing. The undisputed
facts—including the parties’ stipulation and Phillips’s own
deposition testimony—establish that CTA terminated Phil‐
lips because he refused to take a drug test upon initiation of
a workers’ compensation claim as required by CTA policy.

-- 4 of 8 --

No. 13‐2199 5
Phillips has admitted that he had no evidence or other in‐
formation that CTA had any other reason for discharging
him. CTA consistently has applied its drug testing policy and
has discharged other employees who have refused to submit
to the drug test pursuant to the policy. Therefore, Phillips
cannot establish that his discharge was motivated by his
pursuit of a workers’ compensation claim and he cannot
prevail on his retaliatory discharge claim.
Furthermore, other CTA employees have initiated work‐
ers’ compensation claims and have not been discharged. In‐
deed, Phillips had filed a workers’ compensation claim in the
past and was not discharged. In addition, Phillips did initi‐
ate a workers’ compensation claim regarding his April 2010
injury, and he agreed that if he had taken the drug test, he
would still be employed at CTA. We are unable to square
these facts with the claim of retaliatory discharge.
Phillips argues that his discharge was “causally related”
to his initiation of his claim under the Workers’ Compensa‐
tion Act and relies on Clark v. Owens‐Brockway Glass Contain‐
er, Inc., 697 N.E.2d 743 (Ill. App. Ct. 1998), which states: “An
employer may discharge an injured employee who has filed
a workers’ compensation claim as long as the reason for the
discharge is wholly unrelated to the employee’s claim for ben‐
efits under the Workers’ Compensation Act.” Id. at 746 (em‐
phasis added). That misstates the law. “But‐for” causation is
not sufficient to establish retaliatory discharge. See, e.g.,
Clemons., 704 N.E.2d at 407–08; see also Casanova v. Am. Air‐
lines, Inc., 616 F.3d 695, 698 (7th Cir. 2010) (observing that
Clemons “rejected an argument that but‐for causation is
enough to establish retaliatory discharge” and that Grabs v.
Safeway, Inc., 917 N.E.2d 122 (Ill. App. Ct. 2009), and Finnerty

-- 5 of 8 --

6 No. 13‐2199
v. Personnel Board, 707 N.E.2d 600 (Ill. App. Ct. 1999), “like
Clemons reject the argument that a fired worker can establish
causation by showing that a workers’ compensation claim
set in motion a chain of events that ended in discharge”);
Marin, 562 N.E.2d at 286 (stating that the causal element “re‐
quires more than a discharge in connection with filing a
claim”). The initiation of a workers’ compensation claim
“was a necessary condition of [Phillips’s] discharge. But it
was not a sufficient condition.” See Casanova, 616 F.3d at 697.
Clark is unhelpful to Phillips for another reason: the employ‐
er in that case discharged the employee because it thought
her claim for benefits was exaggerated and admitted that the
discharge was connected to the workers’ compensation
claim. There is no such evidence in Phillips’s case.
Phillips asserts that the district court erred in relying on a
provision of the Illinois Workers’ Compensation Act, 820
ILCS 305/11, not in effect at the time of his injury. (This pro‐
vision establishes a rebuttable presumption that the employ‐
ee was intoxicated and that the intoxication was the proxi‐
mate cause of the employee’s injury if the employee refuses
to submit to drug or alcohol testing.) Although the court re‐
ferred to this provision, its grant of summary judgment to
CTA was not premised upon it. Rather, the court mentioned
the provision only after it determined that Phillips had not
suggested CTA had an improper motive in terminating him
and that he agreed he was terminated pursuant to the drug
testing policy. The court cited the provision as a response to
Phillips’s argument that the drug testing policy discourages
employees from filing workers’ compensation claims; the
court simply referred to the provision as support for its con‐
clusion that there were valid reasons for requiring drug test‐
ing upon the initiation of a workers’ compensation claim.

-- 6 of 8 --

No. 13‐2199 7
The enactment of such a provision certainly reflects that an
employer is not out of step with Illinois public policy by re‐
quiring drug testing under certain circumstances. Moreover,
any alleged error caused by the district court’s reference to a
statutory provision not in effect at the time of Phillips’s dis‐
charge does not undercut the correct determination that
Phillips failed to show his discharge was caused by the initi‐
ation of a workers’ compensation claim.
Although Phillips argues that the drug testing policy dis‐
courages employees from filing workers’ compensation
claims, he could not identify anyone who had been discour‐
aged from filing a claim because of the policy. (And he was
not discouraged from filing a claim.) As the district court
acknowledged, this discouragement argument is in tension
with the current version of Workers’ Compensation Act,
which expressly contemplates drug and alcohol testing in
connection with workers’ compensation claims. See 820 ILCS
305/11. Furthermore, drug testing in employment is not
against Illinois public policy. For instance, the recently en‐
acted Compassionate Use of Medical Cannabis Pilot Pro‐
gram Act provides that “[n]othing in this Act shall prohibit
an employer from enforcing a policy concerning drug testing
… provided the policy is applied in a nondiscriminatory
manner.” 410 ILCS 130/50(b) (effective Jan. 1, 2014). And the
Illinois Human Rights Act provides that “[i]t shall not be a
violation of this Act for an employer to adopt or administer
reasonable policies …, including … drug testing, designed to
ensure that an individual described in [the Act] is no longer
engaging in the illegal use of drugs.” 775 ILCS 5/2‐104(C).
According to Phillips, CTA’s drug testing policy treats
similarly situated injured employees differently based solely

-- 7 of 8 --

8 No. 13‐2199
on whether they seek to initiate a workers’ compensation
claim. He argues that CTA cannot justify this disparate
treatment. Yet the drug testing policy covers many other sit‐
uations in which CTA faces potential legal exposure; the pol‐
icy does not single out workers’ compensation claimants for
testing. For example, testing is required if an OSHA recorda‐
ble accident occurs or if there is a serious equip‐
ment/property/personal damage incident. With the drug
testing, CTA seeks evidence for the workers’ compensation
proceeding, cf. Parro v. Indus. Comm’n, 657 N.E.2d 882, 885
(Ill. 1995) (relying on blood alcohol testing of claimant fol‐
lowing injury to defeat workers’ compensation claim)—
evidence that would be unnecessary where the injured em‐
ployee merely seeks treatment or services at the health ser‐
vices department. This seems to be a sound reason for dif‐
ferential treatment.
In conclusion, Phillips’s employment with CTA was ter‐
minated because of his refusal to take the mandatory drug
test—not in retaliation for his seeking to file a workers’ com‐
pensation claim. We therefore A FFIRM the district court’s
judgment.

-- 8 of 8 --