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Friday, December 6, 2019

Appeals panel slashes $2.6M jury award to fired Dominick's worker, says excessive, violates due process

By Scott Holland | Sep 27, 2017

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A state appeals court has slashed a $2.6 million jury award given to a former Dominick’s Finer Foods employee in a wrongful termination suit, saying the jury award was excessive and violated the due process rights of Dominick's corporate parent.

In an unpublished order issued Sept 26, a three-justice panel of the Illinois First District Appellate Court in Chicago ruled on an appeal of a decision from Cook County Circuit Judge Joan Powell, who had determined a jury had not overstepped in awarding the fired supermarket worker $2.5 million in punitive damages.

Justice Aurelia Pucinski wrote the order, and justices Cynthia Cobbs and James Fitzgerald Smith concurred in the decision. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances.

The employee, Rudolph Francek, was part of a joint complaint filed against Dominick’s Finer Foods LLC, and parent company Safeway Inc., in April 2007. Along with Fred Grabs, Francek said the grocer fired him in retaliation for worker’s compensation claims he had filed. He said an injury left him unable to work for five months until the grocer fired him in June 2006, as well as for 14 months after his termination. The company said the firings were based on an attendance policy, noting it obtained independent medical opinions that the men could work without restrictions, but the men failed to either show up for work or call to request time off for three consecutive days.

After years of legal battles and ultimately the exclusion of Grabs from Francek’s case, a jury on Jan. 27, 2016, awarded Francek $2.5 million in punitive damages, as well as court costs, and $156,315 in compensatory damages — $31,315 for psychological treatment, $75,000 for emotional damages and $50,000 for future emotional damages.

Safeway responded by filing a motion for a new trial, citing what they said was erroneously admitted evidence related to Grabs’ situation and Francek’s Illinois Workers’ Compensation Commission and jury instruction errors. Powell denied that motion on Aug. 30, 2016. In its appeal, Safeway questioned whether punitive damages should have been left to the jury, and if those damages violate its federal due process protections or are excessive under state law.

The justices agreed with Francek that Safeway failed to object to IWCC findings during the trial, but disagreed with his suggestion there was no objection to Grabs taking the witness stand. Further, they said Powell was right to allow the testimony because it “was relevant to show a common scheme” involving the same supervisor who fired Francek.

But, while the justices determined Powell was correct in letting a jury determine punitive damages, the panel sided with Safeway that federal due process protections entitle Safeway to have the award reduced.

“Francek’s discharge included physical manifestations of psychological harm that required treatment and counseling,” Pucinski wrote, adding that “evidence of defendants’ flagrant disregard for Francek and Grabs’ statutory rights as injured employees was sufficiently reprehensible and warranted a significant amount in punitive damages.”

However, she continued, “the 16:1 ratio of punitive damages to compensatory damages in this case violates due process.”

The panel compared damage ratios in similar cases and found several instances in which appeals courts reduced punitive damages to be closer or equal to compensatory awards. It considered cases Francek submitted in which ratios exceed even his 16:1 difference because those “were more the result of particularly egregious conduct that caused the plaintiffs great personal harm and less the result of small compensatory damages awards.”

In reducing the ratio to 9:1, the justices set Francek’s new award at about $1.4 million. If Francek objects to the reduced award, the circuit court will have to order a new trial on the punitive damages, the order said.

Francek was represented by attorneys with the firm of Rittenberg & Buffen Ltd., of Chicago.

Dominick’s and Safeway were defended by the firm of Vedder Price P.C., of Chicago.

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Organizations in this Story

Rittenberg, Buffen, Gulbrandsen, Robinson & Saks LTDIllinois First District Appellate CourtVedder Price PC

People in this Story

Ivan Rittenberg