recognize a difference in principle between firing somebody or letting them go based on your acceptance of one medical report versus another and on the one side and on the other side letting somebody go because they don't keep the human resources people notified about their status not worth fully notification requirement derives caus ly from the worker's compensation situation so you think in the in the letter of july twenty sixth two thousand and eleven the golden mails ms williams saying you know you have a you know we had this december i am me and you need to come back to work in august too and let me know if you have any questions you think that saying to her let me know and then when she doesn't let her know letting her go on that basis is somehow workers comp discrimination absolutely in fact the grabs case is a pretty analogous situation out of the illinois appellate court but what if they never know i'm you know for all they know her personal  has changed his mind and she's ok to go back obvious to you first of all that's not accurate there was plenty of information that the claims adjuster had and there are states attorney had they only knew about the dispute so basically their defenses well we weren't following what was going on in the worker's comp case but what they're saying what their attorney that was imputed to them they can say well you talk to my attorney you didn't talk to me the law doesn't permit what the state's attorney knew is imputed to the client yeah but you know i guess i have a lot of trouble understanding actually why she just doesn't you know shore up her case by giving this gold phone call and say look you know just make sure you're aware that we have a difference of opinion about went on to be ready to get back to work at which point all of the cases that you're talking about it seems to me would be triggered right while she wasn't trying to prepare a retaliation case she was working with her attorney to negotiate her return to work to get it her attorney and structure to keep them in the dark he told her he would take care of it with the state's attorney he says sometimes if the worker is ready to go back to work you'll just tell them to go back to work or usually he works out with the state's attorney which in fact is what he did here and here the problem is that she was fired in the meantime but let me go back to the graphs case because i think if you look at that you'll see th what i'm saying is actually the law in illinois it's not just it's clear and perhaps what happening grabs was the workers were out on constantly you know then they got the i am me and at that point they changed the computer coding so that the workers were put in the category where if they didn't show up to work for three days they'd be terminated three days later or shortly thereafter they were terminated because they didn't return to work and the appellate court said completely silent and leave the employer in the dark and still chilly employer they can't assume that the person isn't coming back you know the illinois appellate courts think that is a great idea for policy they set and perhaps we want to make sure i right but that that's the illinois law and grabs they said we want to make this clear to employers you can't fire somebody for something that's causally related to their worker's comp claim or as they known for years do this they said you can't do it stop a costly relighted to the leads to her being ordered to return to work and then she's fired because she didn't return to work the comp situation is the cause of her terminations that's that's a lot of makes perfect sense otherwise you're putting the employee in a situation where they have to choose between returning to work while you're putting the employer situation where she has to make a phone call in response to the letter that she gets from somebody like golden which is exactly what the other woman did  yeah but she was given up a number of breaks knowing her stand beside him she kept the employer in the loop you know so she wasn't really quite the same well excuse me your hundred telling us your opposing parties lawyer something isn't keeping them in the loop i mean it's sort of ridiculous to me just say that telling the state's attorney who was handling the case for the defendant something isn't good enough if the state's attorney isn't keeping his client abreast that's not miss williams problem that's their problem and that knowledge is imputed to them they can't say you just told our eternity and i know everything about cop they it's this is not at all like it's not at all like the haiti where the guy the terminator the person i'm a skilled in this position didn't even know there was a possibility of a worker's comp he didn't know there was an independent medical exam he didn't know nothing about nothing he just knew that the guy hadn't shown up to work that's completely different from the situation here well what was the director of the department i mean there's also an irony in the office of the chief judge saying well we're innocent because we don't know what the law was but so the votes which is basically what's going on here but it so let me ask you about your contract theory you have a theory that mr marrs now mr schwartz on behalf of their respective clients make a contract what is this contract is it to refrain from suing in order to settle on a never the fact contracts you're relying on is evidence of some do an oral agreement that had exactly what they had an oral agreement then they put it in writing that summit to the comp commission in the meantime she was fired contrary to favorable to miss williams are the states attorney said yeah you don't need to come back to work until september so i'll get it worked out we'll get it was all for your report to work on september sixth we're done here then he  to do that any may have said so but he had no authority says right so then you have to look at the evidence to see if that's disputed than the tribal issue and it is tribal and what's your evidence that he does have the authority or that it's first of all marcel says this is the way they always do it when it's cook county they always negotiate with the state's attorney he does have the authority to settle the cases in fact he's the guy that signed the agreement that they ultimately reach and submitted that to the worker's comp commission representing that she was temp for that she was disabled until september seventh she wasn't ready to leave great right so he have the authority to do all the out but he didn't have the authority to say that orally before he signed the written agreement that doesn't make sounds particularly given mr marcel's testimony that they do that all the time so i it's his job to figure out when she is physically capable of going back to work or to resolve disputes to that effect absolutely hit his job includes resolving disputes but return to work that the state's attorney is the one that signs the document saying what a return to work date is and a third fact is kind of the flip side of what we've caught with the retaliation which well the state's attorney never talks to the client so obviously he's authorized to do this because he does it without even talking to the client so it's not like he goes back to rose goldman says well i'm thinking september seventh how does that can help with that can i sign this no he just signed it so there's no evidence actually that he goes back to cook county to get authority the evidence is the state's attorney does it on their own which is actually maybe not the most reassuring description of a lawyer client relationship but i guess well there's a fun over the district where no to you know this right hand doesn't pay any attention about the left hand enough both i think he does have the authority based on the op a dunce and his denial of that as of can be attacked with the circumstantial evidence including the practices in the court i mean mr moss element of bunch of other least with the statute of limitations from this local governmental employees tort immunity well that only applies they've only raised that or that and the just record only relied on that with respect to the whistleblower right that's what you so are there are two district court of illinois northern district opinions one saying that that does apply to whistleblower one saying it's  law means and we actually need to look at what the state law says number one and we need to look at what the illinois courts have thought that it meant but given that the other argument we have is that even if the statute does apply she gets around that because she had filed a case in state court that was the finally the to talk about retaliation i don't think because there's no way you can say this case falls with they where the guy that did the firing didn't know anything and if you look at grabs it's exactly the same thing as here where the i triggers a change in the person's bookkeeping status towards that goes from being on worker's comp leave to if they don't right order call or call him and i and one other point i'd like to make about the calling in as it's a great question well if she had called in without assault everything or as i guess as you put it will not have made a better retaliation back but if they'd gone ahead and done it when they said calling she had my problem is they tell her to do something directly it's not indirect i can grabs and she doesn't do it so that's a problem but i asked all of them well suppose you've known about the other doctors not suppose you've known her doctor thought she wasn't ready to come back and all their witnesses i don't know the head guy in the main office said i probably would have gone with the county doctor well that i think you would have had a different case had had that happen but anyway you've  this was a very simple case and the reason why following him was discharged from her employment was simply a job abandonment well let me ask you this does the office of the chief judge him in any written policies about the right to make decisions about  employees return to work day yes it's in the collective bargaining agreement and it's in the personnel policies of the office that the personnel department is the one who has the authorization to return to work the collective bargaining agreement that was an exhibit to the summary judgment motion also provides that for job abandonment you can lose your job it will what about the role of the state's attorney and that's such a good point your honor the state's attorney is a state's attorney for the industrial claims commission he is a state's attorney for the entire worker's compensation for the entire county he is not the attorney for the probation department in this case so there is no doubt and that's for policy reasons it makes perfect sense that the workers compensation lawyers handle the  day to the start date of return to work in the amount of money and the value that that employee gets while she's off to work we don't want the employer involved in the disputes between doctors and whether or not they can come back to work we want that settled in the worker's comp mr miles out her lawyer testified that he has forty to fifty workers compensations cases a day it's a high volume practice where he gets a percentage of the money that the employees get there is no way that we would want the responsibility to call the probation department to fall on the assistant state's attorney who also has forty or fifty cases a day to handle so you're saying that the assistant state's attorney's client is the board not the probation depart it's actually the risk management department of cook county yes and they handle it for all of the county employees they handle it for the department of corrections and the jail guards for the cook county clerk's office the microfilm employees so he the assistant state's attorney would not have the knowledge or the new one to be able to say yes probation employee you can start on a wednesday because they're going to know you can't get engaged or she can't engage in any settlement absolutely so how do you square that with what her lawyer says that he makes these kind of in settlement for the amount of the value of the t t d benefits and the amount of the value staps the day before the employees is capable of going back to work so when mr marshall testified in his deposition that he consistently negotiates the return to work date that's the end date for the benefits that's for the amount of money that does not mean he negotiates the return to work date that is call your employer and your personnel in fact to testify in his death this is not a babysitting job that i have i expect my client to act responsibly when they receive letters from their employers and if they have questions to come to me but this isn't rocket science that is a reasonable request from the employer to call and let them know it's something that they should be doing and neither the workers comp attorney or the state's attorney should be covering that for the employee to hear are you saying that sort of scenario a is that the t t d benefits last you know from date number one to date number two and the lawyer working that out isn't interested or isn't engaged to worry about whether after date to the person goes back to work or they don't go back to work or they move to another state or they do whatever they do so i'm trying to the workers compensation just because they file workers compensation the employee does not get a force field or an immunity from having to a comply with other regulations of the employer the best case that just came out of the seven circuit to point was the phillips case where the requirement was that before you could file workers comp an employee had to take a drug test the employee could still do as worker's comp but he still had to take the drug test and he was fired for not doing so this in this case the reasonable requirement was when she went on leave she got the first letter from rose golden in june two thousand and ten saying when you know your return date please contact me she gets the second letter from rose july twenty sixth two thousand and eleven saying i just learned that you can come back to work please show up in a week or let me know why you can't contact me she goes to the county physician on august first and the county physician examine her and says you're ready to work and hands her a piece of paper that says contact your personnel director or your or your employer now about your return to work so she has three written directive saying to come to term player she brought that letter the twenty six letter to her attorney her attorney wouldn't answer the question about what he told her with regard to rose gold and he claimed to turn client privilege he did say in the deposition that he told her the kind of position she had to go see and they weren't kidding about that but he was silent as to what he advised her and that's when he said typically i leave the return to work date negotiation back to my employee ok but taking taking the facts in the light her though there's this other track going on where mr marrs ours is talking to attorney shorts and they come up with this longer period for the for the disability benefits i guess it's temporary total disability benefits and there's one does have a sense that there are conflicting signals going on and if those benefits are going to go all the way through september the six then why isn't that what drives your return to work capability if you look at the e mails between august tenth when the first e mail was sent from mr roselle and august twenty fourth their one sided e mails her lawyer her doctor says she can come back on september it never says is that ok they're just one sided e mails from anthony weiner's out there's no written response from the essay saying yes that sounds fine yes we'll do it it's not until after the terminations in november when the party signed this agreement so what about the grabs case you know your opponent is relying very heavily on that and it does in fact refer to failing to call in the languages in the illinois health court decision while some that run against you i think you the decision maker who terminated her employment had no idea that there was a dispute the material facts that were accepted by the district court there fifty six point one statement critically say the only people knew about this disputed i me were th anything why isn't knowledge imputed from one part of the county to another because the county is too big frankly and the workers compensation is too big and the administrative burden on the employee is so minimal she doesn't necessarily have to call she can send a letter still had heard nothing it is unfortunate but we know from bieber's olan and i think this case is just like baby versus all in that the circuit decided in two thousand and fourteen the sloppy personnel practices or the fact that the medical department in the only case didn't talk to the labor department of the same company was not imputed in that case is that fair probably not but that was the same company and that was even smaller than the county it's unfair to impute that kind of knowledge here when she had written directives to do it  and i think the only case is controlling despite the fact that plaintiff believes that just because the impetus to get her back into work in the impetus to ask her to contact her employer after eleven months with the i me there is no evidence in this case that the reason they terminated her employment was this disputed i mean it was clearly because she didn't count them and it would be unfair to stretch that balance to the county for all workers compensation claims  the other things in other words we rule for plate if you say you were open in the pandora's box absolutely absolutely because then what the county says in the letter contact me really has no real means absolutely and as counsel for the plaintiff just pointed out it's not as though jeremy schwarz can't take the probation department to say can she come back at this time there is no discussion between the ac in the workers comp and the probation department they leave that between the employer and the employee and that's why they're saying we find all of that in the collective bargaining agreement and this office of the chief judge manual well and the office of the manual is really not to decide whether this was fair or a prudent decision the issue was whether we discriminated against her and we didn't not for race not for her exercise of retaliation anaphora her whistleblowing action if the court has no further questions well at a minute i'll just make one point for grabs greg said we want to make this clear employers in illinois do not fire people for reasons that have to do with their exercise of their cop benefits so what should the cook county do they should do what they do all the lawyer by the way the way that works is probation delegates the handling of its comp cases to the cook county risk management which handles them for all of cook county including the office of the chief judge and risk management