good morning ladies and gentlemen our first case of the morning is again a number twenty case one one seven three seven six one michael versus persico alliance group c are you ready  of the trial court's judgment in favor of persuasion on plaintiff's claims of wrongful discharged in violation of public policy our position is that the appellate court decision violates the principles set forth in this court's nine hundred ninety eight decision in clemens versus mechanical device company the principles for attributing the burden of proof and analyzing causation in a retaliatory discharge claim and that permitting the appellate court decision to stand would represent a significant and unwarranted departure from existing authority and greatly expand what is supposed to be a limited and narrow cause of action an exception to the doctrine of employment and well let me briefly review the case for you this lawsuit began eleven years ago when her system which is a seed packaging company was sued by three former employees the employees claim that they were fired because they had secretly collected information regarding underweight seed bags that were in the warehouse and given that information to a former coworker who used that information to report the company to the illinois bureau of weights and measures this was done in an admitted effort for the former coworker to both play hardball with the company because it had successfully can test it is claim for unemployment after firing him for misconduct now precision mounted numerous defenses to this claim over the years both legal and factual the company filed a motion for s the company presented substantial evidence that it did not know that these plaintiffs were involved and that former coworkers call to the bureau so did not know that they had engaged in any allegedly protected activity the company further presented substantial evidence that it had legitimate reasons for terminating these individuals in the case of plaintiff homan it was her violation of company policy by engaging in horse play with forklifts there was evidence presented at the trial that eyewitnesses saw him go riding a forklift up behind a coworker on a forklift deliberately lift that forklift off the ground upsetting the coworker enough that he was going to quote dang near crying that of course violated company policy led to his term nation in the case of plaintiffs michael and clumpy the reason for terminations was a reduction in force and here again there was substantial evidence presented at trial that the company had been experiencing an ongoing slowdown in business and that the corporate office had ordered the elimination of twenty two positions across eight operating companies including rescission rescission was instructed to let more people go to left at those four people based on job performance and the plaintiffs here were two of discussion did you raise the argument below that employer could actually have a legitimate reason for a discharge but still be liable for telling tory discharge and if you did where is it in the record we did not raise that argument our position has always been and continues to be that if the employer had a legitimate reason that there cannot be a successful claim for retaliatory discharge was it raised in the yes that was always raised clemens was cited repeatedly to the trial court to the appellate court that has always been our position the trial court issued a written decision and train judgment in perceptions favor that the bottom line for the trial court was that it believed the company's legitimate non retaliatory reasons for terminations and for that reason it entered judgment in persuasions favor now what woman to expect at that point in the cases that the case would end the defendant had submitted substantial evidence to the trial court accepted that evidence that there was a legitimate reason but instead the plaintiffs appealed now what they did they did not challenge the trial court's finding of a legitimate reason is being against the manifest weight of the evidence rather they challenge the reasoning utilized by the trial  what they said was that the trial court used to shifting burdens analysis to evaluating the evidence so rather than going straight to the ultimate issue in a retaliatory discharge plain which is did the plaintiffs prove their terminations were motivated by causal nexus between the two satisfied on that point the trial court and turned to perception to see if it had meet met its burden of production did persuasion articulate a legitimate non retaliatory reason or superstition met that burden so then the trial court got to the ultimate issue did the plaintiffs prove their terminations were motivated by retaliation and not by a valid business reason now i i need pause here to acknowledge that the trial court err in applying a shifting burdens approach this court decision in clemens it's clear that shifting burdens does not apply in a wrongful discharge court claim or tort claim rather that that was harmless error because that imposed a burden on precision that perception should not have had a burden of production that it should not have had and the court ultimately got to the right decision what was the reason was it a retaliatory motive or a legitimate business reason so your position goes with them is that that that's exactly right therefore harmless error and that's why the trial court's decision should be reinstated now on appeal plaintiffs argued exactly the opposite they argued that the shifting burdens imposed a double burden on them by requiring some aside the trial court's finding of a legitimate reason it was as though that wasn't even in the record the court found that the crime of patient finding of a causal nexus was tantamount to a dispositive finding of causation and therefore reverse the trial court and entered judgment for the plaintiff we submit that the appellate court was wrong in imposing a burden of proof on the company and in finding causation let me start with burden of proof issue because that figure prominently in our petition for leave to amend cases under a traditional tort analysis no burden shifts to the company the defendant not a burden of production as the trial court improperly placed on it and certainly not a burden of proof and even higher burden that the appellate court placed on it rather its plaintiffs the bear the burden to prove each element of their claim clemens explained the reason for this what the supreme court there said said there is putting any burden on the company would in essence expand the tort of her tell you three discharged by reducing plaintiff's burden of proving the elements of the tort and because the supreme court did not wish to make this narrow tort and easier for plain bring the clemens part recognize the burden always remains on the plaintiffs now as i stand here before you know it seems as though plaintiffs have renounced their prior theory which they advanced before the appellate court that the burden of proof ever verge of proof shifting to the company as being somehow taken out of context now the am a kiss in this case the national employer's lawyers association advocates for plaintiffs is even more forthcoming neela admits that the appellate court erred causation in retaliatory discharge cases must be avoided so as we stand here it appears that there is agreement between the plaintiffs and ourselves that the appellate court erred in putting a burden of proof on the company and that would be grounds enough to know our position is that the trial court's decision should be reinstated that there was a finding of past fact and legitimate motive and that is dispositive of this case and so that does bring us to the issue of causation do not make a factual finding of causation it did not use the word causation it did not make any evidentiary findings that would support causation and it did not enter judgment for the plaintiffs as of course it would have if it had found causation and enter ultimate factual finding is that the company had valid non protection reasons for terminations now going to the appellate courts tries to cast that sign that binding aside based on its poor reasoning on burden of proof but that factual finding remains in the case under clemens and under this court's receiving decision in hartline versus illinois power company where as here the fact finder except a valid reason then there cannot be causation and the required to be proven is not met under this principle alone the appellate court should be reversed and the trial court should be affirmed here the company advanced a valid reason it submitted substantial evidence supporting that valid reason the fact finder believed about valid reason that finding has not been challenged is against the manifest weight of the evidence it is intitled to deference it shows that there is no causation supply of blame must now let me take a step beyond that because even if you put aside the trial court's ultimate finding that there was a valid reason for term nation it's clear that the causal nexus finding by the trial court was  for an ultimate finding causation the trial court was explicit that that cause and that's a signing was part of a primal facia case and by definition a prime aphasia case is a threshold showing it is used to that there is some evidence to suggest that these two events the report giving the information to a coworker and the termination are not totally unrelated but it does not compel any of them moreover the evidence that the trial court considered in finding a causal nexis is not sufficient to establish the finding of causation under existing authority in the state the trial court looked at two things if you read the decision causal nexus looked at timing and the trial court was satisfied that there was a sufficiently short period of time between giving the information to the coworker and the discharge is that you know that could suggest that there was some connection between these two that was one factor we have cited multiple cases that would say timing alone is sufficient for causal nexus it is not sufficient to establish liability so that wasn't enough the other thing that the company look was something really even more fundamental than causal nexus you'll recall that the company argued we didn't know we didn't know who called the bureau we didn't know that these individuals played any role in giving information to a disgruntled former coworker obviously there can't be a successful claim for retaliatory discharge if the employer did not know that the individuals engaged in these sort of protected activity but what is most troubling about the trial court's decision shows any relationship between the protected activity and the discharge then under their very plaintiff wins it doesn't matter if the employer had a valid non protection of reason it doesn't matter if the trial court believes that it is like deciding the issue of motivation without hearing from the party who had the motivation obviously it is not the law under clemens or any court decision interpret in this narrow tort that liability should be imposed before the employer's defense is even considered would be a tremendous expansion of the store and rejection of precedent defining causation and impose liability based solely on that binding nexus so here after considering all the evidence the trial court believed persuasion had valid non protection reasons for terminating the plaintiffs that finding has not been challenged as against the manifest weight of the evidence and in light of that finding judgment must go to the company it please the court my name is fern wolf and i represent alan hallman clumpy and wayne michael in this retaliatory discharge case which is a common law toward and like other common law torts that are analyzed using traditional tort analysis the plaintive when the issue is causation must prove proximate cause by a preponderance of the evidence or in this court's words and clemens that the discharge was quote causal and it did change the outcome of the case but among those elements that the trial court contin considered was a correct element that the plaintiffs had to prove causation not preliminarily but by a preponderance of the evidence and that is what the trial court said in the second paragraph was of his opinion is that plaintiffs have the burden of proving causal nexus by a preponderance of the evidence and he made that finding that we had to prove and the judge found that we proved that plaintiff's proof that that plaintiff's report involvement in reporting the underweight bags of soybeans to the state of illinois was a there nexus i mean he was looking at choirs ation when he may that when he made that portion of his decision i can say that this court in clemens used the term causally related and i think these terms are just simply interchangeable although the trial court didn't use the i p i because it was a bench trial i would assume that i p i fifteen point zero one is an accurate statement of the state of what proximate cause means in the state of illinois which means that trumps everything and it is sufficient that if it combines with and if it combines with another cause resulting in the injury it is still proximate cause the standard as i said is found in i p i fifteen no one in pla that standard to the trial court of the defendant argued in its reply brief that we are were making this argument that it made its debut in the supreme court but that's not true yet if we if we it's what we're good does the defense evidence of nine or challenge or reason why you know if the defendants non retail you took well first of all a finding of causal nexus precludes it precludes a finding that there was not proximate cause because then there is the one cause the illegitimate cause and under traditional tort law principles that is sufficient for the finder of fact to find in favor of the plaintive me what the public policy in the state of illinois is is that when people are whistle blowers they are not supposed to be fired because of their whistle blowing the employer is not supposed to take that factor into account when making its decision under a proxy because analysis this is not a sole cause case is an expansion of clemens i don't believe so i think and in fact in the portion of clemen that brad well first of all clemens was not a proximate cause case and i don't think this court would have used clemens to change the traditional tort standard of proximate cause when that wasn't really the issue in the case the issue but in the case was whether there was a legitimate whether the reason the alternative theory proposed by the defendant was have to be something lawful and what clemens says has been a ploy or chooses come forward a valid non for textual basis for discharging employees and the trier of fact believes it with no real fleshing out of what it means the causation element required to be proven has not been that isn't what happened here well what the trier of fact did not believe well a couple of things did not happen here the trier of fact has to believe under proximate cause analysis that the employer's reason is the reason to the exclusion of the unlawful reason because under proximate cause if there are two different reasons and one of them is the retaliatory motive the plaintiff should prevail that's what proximate cause is there could be more than one proximate cause and the plaintiff should still prevail as long as the plaintiffs prove that the unlawful motive was the what the trial court did hear is that the trial court by adding these extra elements to the case and the way he does it is he says ok now that i have found causal nexus i'm not allowed to consider that anymore the sole issue in the case is pretext well what the trial court does is says that causation has no relevance to the case anymore the only relevant factor in the case is pretext and i think it he did that because of this misunderstanding of the law and thinking that the elements listed by the appeals court in may control his decision making in the case that he could not make a finding for the plaintiffs that he was per clued legally for making a finding for the plaintiffs based on causation that causation disappears the actual finding of causation which he may disappears if i just stand and says well we fired him because of x well a defendant in an employment case where motive is the only issue i always going to have a reason and even if the defendant doesn't testify i testify to the reason willingly the plaintiff is going to call the defendant and say why did you fire this guy today at victor clemens counsel isn't the causation we're talking about didn't under clemens and this is really chief justice garments are spinning just a different way of asking it but then the burden remain on the plaintiffs to prove causation by demonstrating that defendant of action by demonstrating that the defendants proffered reasons which they gave in this scenario were a pretext for the retaliation i don't think that the court and clemens would have unclearly abandon the traditional stuart standard of proximate cause when the court says at the end of the case that the traditional tort standard which is proximate cause applies i think what the court is saying that if if the jury or the trier of fact believes it being that this legitimate non retaliatory reason whatever it is you know was actually enforced was the reason to the exclusion of the illegitimate reason which is a retaliatory motive which are quite found then the plaintiff loses well  if i understand what you're saying about traditional causation elements however in a retaliatory discharge piers how would the defendant ever defeat a claim for retaliatory discharge if that was th the finding for the defender my my question goes further than that my question is now the trier of fact is looking at it and you're making your agreement yeah maybe there were other reasons but there is this reason over here too how would a finder of fact ever be believe the plaintiffs of against the trier of fact doesn't have to believe that the employer cared one way or the other about the reporting it could be an insignificant reporting it could be that after the reporting the employer changed all of its practices and gave the employee in the award for reporting and encouraged other people to report i mean it just depends on what the circumstances are in the case but in this case the trier of fact did find the requisite causal nexus and so in other cases it's always possible just like in sex discrimination case just because i'm a woman and i get fired i don't win it's not strict liability i still have to prove causation and our court found that we did prove causation and but he just didn't think that was enough he thought the law prohibited him not based on clemens but based on this not really mcdon this argument that the lawyer could have a legitimate reason for discharge but still be liable yes so page four ninety two is going to ask you where you pay for ninety two of the record that's our post tri presumption and goes on further says although there is no direct evidence that defendants knew the plaintiffs were involved they may have thought so two questions first of all one is there a difference between evidence and proof that there is a crime of a crime aphasia case not in the way this court set it out and this court set it out that the prime the facia case regardless of what the explaining why in other words he's explaining the inference that could be drawn right there was no direct evidence nobody says i know but it's an inference that's drawn from the circumstances which is how you know most cases are decided based on inferences  finally is of the bottom line of the speech with the judge's order that he says based on all the evidence presented the court finds that the defendant had valid non protected two reasons isn't that the ultimate finding of the trial court it is his finding that they had valid not for textual reasons our position is that just having valid them protection all reasons is not enough when the plaintiffs have already proved causation that just having a reason for firing somebody an employ always have a reason for firing somebody but the court does not abandon its finding of causation when it says ok they have valid non pretext or reasons this court thought that having valid non protection reasons was enough and it's not enough when they're the trial court has already found that there is causation did not just look at and not just look at the other factor that it specifically identified in that case it which was timing in fact the court practice that finding of causation by saying this isn't everything i'm looking at he said specifically so not the only factor that was considered by the court in making its findings so the trial court was considering all of the evidence when he made his finding of cause on that says he just erroneous slee believe that a finding of causation wasn't enough and not only did he believe that a finding of causation wasn't enough but he were ca axis to use his term but he also believed that as long as defendant gave a reason that he was no longer allowed to consider all of the evidence of causation because what you see in the rest of the opinion is that all he looks at is the pretext issue and he specifically says the evidence he considered in the pretext issue and he never again addresses the evidence of causal nexus so he cast aside all of the evidence of causation because he thought erroneous li based on his really messenger protg sion of may but his reading of may that that was what he was supposed to do which is not what he was supposed to do because that is not the traditional toward standard i would like if i have time to address one more thing this case did not become easier to prove because of what the trial court did what's easier to prove what by indirect evidence the plaintiff does not have to prove causation so we can call it mcdonnell douglas which was what this court i believe was referring to in clemens and rejecting but that's not what happened here if it was completely it isn't simply clemens that held that if illegitimate reason is put forth by the fact finder and the trier of fact believes that then causation is not established it is and your body  and it is many decisions of this appellate court that have held it is either or it cannot be both and though i don't hear plaintiffs explicitly arguing for something of a mixed motive standard that seems to be implicit in their decision that you can have causation you can have a legitimate reason you can still have liability under clemens that is not true the fact that they could not prove that the the lid employer's legitimate reason was a pretext for retaliation is dispositive of this case under clemens and in fact that was the standard that was cited by them throughout this litigation you will see the clemens standard is either or standard if this is proven that causation does not exist you will see that in their first their brief in opposition to our motion for summary judgment you will see that in their post hearing brief you will see that in both briefs that they advanced to the appellate court on the first appeal and you will see that in the appellate court's decision on the motion for summary judgment the first appeal so that has always been the standard advanced throughout this litigation the idea that there can be causation and still and and the trier of fact can believe the employer's legitimate reason and still there can be a finding of liability is nowhere to be found in till this case advanced to this court it's not out there in the body of case law wrongful discharge it is not in all of the pleadings and priests that have been submitted in this case and it's frankly just wrong clemens was very clear that if the trier believes the employer's legitimate reason there is no liability and as a matter of public policy that is the correct outcome here because as this court has also often articulated this tort is to be a narrow and limited exception to the doctrine of employment at will to change that standard now would represent a radical change in the body of case law but also frankly doesn't make sense because if the employer had a legitimate non protect children isn't the pain this would have been terminated anyway what is the damage nothing happened that would not have otherwise happened to these individuals why should there be a cause of action for that beyond that we get back to the fundamental one of the fundamental issues here of whether or not the trial court found causation and i've addressed that and i can and i can hear from your questions that you have understood our arguments on that point but the argument by the plaintiffs that somehow causal nexus is tantamount to causation simply does not line up with what the trial court wrote here nor does it line up with all of the cases that have used causal nexus part of a preliminary crime of facial case that is a standard that has been used simply as a threshold issue that permits the case either to advance past summary judgment to a trial or to the ultimate finding what does that finder of fact believe was the reason for the termination motivation what plaintiffs gave us an example as a situation where the defendant's defense would matter in this case pursuant to the question about what happens then to the employer's defense where does it fit in what she said was if the defendant says this is not what we were thinking about in the trier of fact believes that that's what happened here we presented evidence we weren't thinking about the report to the bureau we didn't even know you were involved in the report to the bureau what we were thinking about is your breathless horseplay with a  forklift and the fact that we needed to cut some employees that's what we were thinking about that's what motivated us that's what the trier of fact believed after hearing all of the evidence that is the reason that judgment should stand in favor