1 

2020 IL App (5th) 190164-U 

NO. 5-19-0164 

IN THE 

APPELLATE COURT OF ILLINOIS 

FIFTH DISTRICT 

________________________________________________________________________ 

JON H. McANELLY, ) Appeal from the 

 ) Circuit Court of 

 Plaintiff-Appellant, ) Williamson County. 

 ) 

v. ) No. 15-L-80

 ) 

SOUTHERN ILLINOIS POWER COOPERATIVE, ) Honorable 

 ) Brad K. Bleyer, 

 Defendant-Appellee. ) Judge, presiding. 

________________________________________________________________________ 

 JUSTICE OVERSTREET delivered the judgment of the court. 

Presiding Justice Welch and Justice Barberis concurred in the judgment. 

 

 ORDER 

¶ 1 Held: Order denying plaintiff’s motion for new trial affirmed, where motion 

duplicated issues in plaintiff’s pretrial motion for summary determination 

of facts, which was denied in an interlocutory, unappealable order, and 

denial of nonpattern jury instructions requested by plaintiff at trial was not 

 an abuse of discretion. 

¶ 2 The plaintiff, Jon H. McAnelly (Jon), appeals the March 25, 2019, order of the 

circuit court of Williamson County that denied his motion for a new trial, after a jury 

returned a verdict in favor of the defendant, Southern Illinois Power Cooperative (SIPC). 

For the following reasons, we affirm. 

NOTICE

This order was filed under 

Supreme Court Rule 23 and 

may not be cited as precedent 

by any party except in the 

limited circumstances allowed 

under Rule 23(e)(1).

NOTICE

Decision filed 01/24/20. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2 

¶ 3 BACKGROUND 

¶ 4 On June 22, 2015, Jon filed in the circuit court a two-count complaint for 

retaliatory discharge and punitive damages. Count one alleged that on April 8, 2014, and 

September 30, 2014, Jon was injured while working for SIPC, and on December 1, 2014, 

Jon filed a workers’ compensation claim against SIPC. The complaint alleged that on or 

about January 26, 2015, Jon was terminated from employment by SIPC, that the 

termination was related to his filing of the workers’ compensation claim, and that he was 

damaged as a result of the termination. Count one requested damages in excess of 

$50,000 plus costs. 

¶ 5 Count two alleged that SIPC’s decision to discharge Jon was made with actual 

malice directed toward Jon for his decision to seek redress for injuries, in wanton 

disregard of Jon’s right to seek recovery for injuries under the Illinois Workers’ 

Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2014)). Accordingly, count two 

requested punitive damages in an amount no less than $50,000 plus costs. 

¶ 6 On May 14, 2018, Jon filed a motion for summary determination of facts, pursuant 

to section 2-1005(d) of the Illinois Code of Civil Procedure (Code) (735 ILCS 

5/2-1005(d) (West 2018)).

1

 The motion alleged that the following facts are indisputable: 

Jon’s employment with SIPC was governed by a Collective Bargaining Agreement 

(CBA) containing a sick leave policy that allows SIPC to terminate employees who abuse 

1

Although Jon labeled this pleading as a motion for summary determination of facts, the Code 

identifies the same as a motion for summary determination of major issues. See 735 ILCS 5/2-1005(d) 

(West 2018). We further reference this pleading in our disposition as a motion for summary 

determination of facts. 
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the policy. Jon was injured during his employment in April 2014 and September 2014 

and filed accident reports associated with said injuries. Todd Gallenbach is a manager at 

SIPC who suspected that Jon was abusing the sick leave policy. Gallenbach reviewed 

Jon’s time sheets for the years 2013 and 2014 and discovered that Jon claimed to be sick 

on the following dates: May 2, 2014; May 5, 2014; June 3, 2014; June 20, 2014; July 14, 

2014; August 27, 2014; November 20, 2014; November 25, 2014; and December 13, 

2014. 

¶ 7 The motion for summary determination of facts further alleged that the following 

facts are indisputable: Gallenbach conceded that it is not a violation of SIPC’s sick leave 

policy for an employee to miss work to receive treatment for workers’ compensation 

injuries. Jon treated with a chiropractor after the first accident and attempted to classify 

the missed work associated with the chiropractor appointments as workers’ compensation 

leave but was allegedly informed by SIPC’s workers’ compensation overseer that he was 

required to classify the appointments as sick leave. Jon was terminated after 

Gallenbach’s investigation. 

¶ 8 The motion for summary determination of facts cited Clark v. Owens-Brockway 

Container, Inc., 297 Ill. App. 3d 694, 696 (1998), in which the plaintiff was injured on 

the job on March 3, 1992, began treating with a doctor—who ordered her to cease 

work—on March 6, 1992, and commenced receiving temporary total disability payments 

from her employer on March 13, 1992. The defendant employer’s physician agreed that 

the cease-work order was appropriate. Id. While off work, the plaintiff participated in a 

physical therapy program to facilitate her return to work. Id. Meanwhile, the employer 
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suspected the plaintiff was malingering and hired a detective to observe the plaintiff. Id. 

On May 22, 1992, the investigator videotaped the plaintiff mowing her lawn, after which 

the employer informed the plaintiff that “she was suspended pending termination for 

‘fraudulent *** misrepresentation and conduct’ in connection with her claims for 

workers’ compensation.” Id. Following a hearing, the plaintiff was terminated. Id. 

Subsequently, the plaintiff filed a retaliatory discharge action, and the circuit court 

granted summary judgment in favor of the plaintiff. Id. 

¶ 9 The appellate court in Clark held that an employer may terminate an employee 

who is injured and filed a claim for workers’ compensation, so long as the reason for the 

termination is “wholly unrelated” to the workers’ compensation claim. Id. at 698. The 

court emphasized that “[t]he determination of the extent or duration of an employee’s 

injury *** is a question of fact for the Industrial Commission.” (Emphasis omitted.) Id. 

at 700. Summary judgment for the plaintiff was affirmed, as the appellate court found 

the plaintiff’s discharge was causally related to the plaintiff’s claim for workers’ 

compensation, as it was based on the employer’s belief that the plaintiff was malingering 

and collecting benefits from workers’ compensation to which she was not entitled. Id. 

¶ 10 Here, the plaintiff’s motion for summary determination of facts alleged that the 

instant case is like Clark because the Illinois Workers’ Compensation Commission—not 

SIPC—had the prerogative to decide if Jon’s chiropractic treatment was for workers’ 

compensation. The motion alleged that SIPC refused to allow Jon to treat the 

appointments as workers’ compensation leave, “insisted that they be treated as sick 

leave,” then terminated Jon for abusing the sick leave policy. Accordingly, the motion 
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requested the circuit court to enter an order, finding that SIPC violated public policy by 

terminating Jon under these circumstances, and requested a jury instruction to that effect. 

¶ 11 On June 6, 2018, SIPC filed a response to Jon’s motion for summary 

determination of facts. The response cited section 5.21 of the CBA, which provides: 

“No employee *** shall absent himself from duty without securing permission 

from the manager *** and in case of illness shall use every effort to notify the 

 manager *** in ample time before working hours. It is understood that illnesses 

 preventing an employee from making it to work are called into the Leadmen. *** 

 Supervisor need [sic] to be notified on expected time off. Office visits have to 

have permission [sic] from the Production Manager ***. All office visits need to 

 be scheduled outside of normal working hours.” 

¶ 12 The response alleged, inter alia, that the following issues of fact existed to 

preclude a summary determination of facts: Jon had for years scheduled non-acute 

medical visits during work hours without previously notifying his supervisor and took 

time off work without first allowing SIPC to accommodate any physician-imposed work 

restrictions. Due to Jon repeatedly leaving work for chiropractic treatment without first 

notifying SIPC, Jon was counseled and warned by Todd Gallenbach—with the consent 

and agreement of Jon’s union representative, Steve Hughart—about his abuse of the sick 

leave policy. Diane Karnes documented in a memorandum dated December 8, 2014, that 

after being counseled that his conduct violated the CBA, Jon continued leaving work 

without notice and continued scheduling routine office visits during work hours. The 
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response alleged that it is a disputed fact whether SIPC knew that Jon was receiving 

medical treatment for a work-related accident. 

¶ 13 The response further alleged the following: The initial injury report Jon submitted 

in relation to the April 10, 2014, accident was accompanied by the safety investigation 

report of SIPC engineer, Jim Webb. Jon reported to Webb that he did not seek medical 

attention, “but just wanted to submit a report in case he has any ill effects from the 

incident.” Jon did not file a workers’ compensation application for adjustment of claim 

on the April 2014 accident until June 2015—more than six months after his discharge 

from SIPC. According to the response, the workers’ compensation application for the 

September 30, 2014, accident was not filed until December 1, 2014, and was not received 

by SIPC until after Jon was terminated “in early December 2014.”2

 

¶ 14 The response further alleged as follows: There is no evidence that SIPC should 

have been aware that Jon was taking unscheduled leave from work to receive treatment 

for a work injury. Jon admitted he was involved in an automobile accident in January 

2014 when he struck a deer. The bills from the chiropractor that Jon attached to his 

motion for summary determination of facts show payment by Pekin Insurance 

Company—Jon’s automobile insurance carrier. SIPC’s group health coverage is 

provided by Blue Cross Blue Shield and its workers’ compensation coverage is provided 

by Federated Insurance. Jon did not turn in bills for payment to SIPC for payment by its 

2 The date of termination asserted in the response differs from the date of termination of January 

26, 2015, as alleged in the complaint and the letter of termination in the record dated January 27, 2015. 
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compensation carrier. Submitting the chiropractor bills to his auto insurance carrier 

indicates that the treatment Jon received was related to the automobile accident. 

¶ 15 The response alleged that there is no evidence that Jon was receiving treatment for 

a work-related injury on the dates he left work—without notifying his managers—to 

attend the chiropractor appointments. The chiropractor’s records from the day before 

Jon’s April 2014 accident at SIPC reflect that Jon has a history of neck and back pain 

dating back to his automobile accident in January 2014. The response alleged that there 

is no link between Jon’s termination and any exercise of his rights under the Act, absent a 

finding that SIPC knew Jon was leaving work due to a work-related injury. The response 

requested the circuit court to deny Jon’s motion for summary determination of facts and 

to deny the correlating, requested jury instruction. 

¶ 16 A hearing on the motion for summary determination of facts was held on July 9, 

2018. The following day, the circuit court entered an order by docket entry denying the 

motion, indicating the written briefs, affidavits, sworn deposition testimony, arguments of 

counsel, and case law were fully considered. A jury trial on the merits was conducted 

December 4 through 7, 2018. At the conclusion of Jon’s case-in-chief, SIPC moved for a 

directed verdict—which the circuit court denied—and moved to strike Jon’s claim for 

punitive damages, which the circuit court granted. 

¶ 17 At the jury instruction conference, Jon tendered Plaintiff’s Instructions 17 and 18. 

Plaintiff’s Instruction 17 is a non-Illinois Pattern Instruction (IPI) and provides as 

follows: “An employer may discharge an employee who has exercised his right under the 
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Illinois Workers[’] Compensation Statutes only if the reason for the discharge is wholly 

unrelated to the employee’s claim for benefits under the Workers[’] Compensation Act.” 

¶ 18 Plaintiff’s Instruction 18—also a non-IPI—provides as follows: 

“It is a violation of the law of the State of Illinois for an employer to terminate an 

employee because the employer believes that the employee’s Workers[’] 

Compensation Claim is fraudulent. Whether an employee’s Workers[’] 

Compensation Claim is a legitimate claim or a fraudulent claim, it’s a decision that 

must be made solely by the Illinois Workers[’] Compensation Commission.” 

¶ 19 The circuit court denied Plaintiff’s Instructions 17 and 18. After deliberations, the 

jury returned its verdict in favor of SIPC, and on December 10, 2018, the circuit court 

entered judgment on the verdict. 

¶ 20 On January 9, 2019, Jon filed a motion for a new trial. Many of the alleged 

indisputable facts enumerated in the motion for summary determination of facts are 

restated in the motion for a new trial. Both motions cite Clark and claim its applicability 

to the instant case. The motion for a new trial contends that the issue was preserved by 

filing the motion for summary determination of facts and by tendering the correlating 

jury instructions. The motion requested a new trial and requested that Plaintiff’s

Instructions 17 and 18 be given to the jury at the new trial. On March 25, 2019, after a 

hearing, the circuit court denied the motion for a new trial. Jon filed a timely notice of 

appeal. 

 
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¶ 21 ANALYSIS 

¶ 22 In his notice of appeal, Jon challenges the order denying his motion for a new trial. 

“A court’s ruling on a motion for a new trial will not be reversed except in those 

instances where it is affirmatively shown that it clearly abused its discretion.” Maple v. 

Gustafson, 151 Ill. 2d 445, 455 (1992). “The circuit court abuses its discretion only if it 

acts arbitrarily without the employment of conscientious judgment, exceeds the bounds of 

reason and ignores recognized principles of law, or if no reasonable person would take 

the position adopted by the circuit court.” Frulla v. Hyatt Corp., 2018 IL App (1st) 

172329, ¶ 26. 

¶ 23 The allegations in the motion for a new trial are incorporated into the issues on 

appeal and are summarized as follows: (1) whether the circuit court erred by denying 

Jon’s motion for summary determination of facts; (2) whether the circuit court erred by 

refusing to allow Plaintiff’s Jury Instructions 17 and 18; and (3) whether the ruling in 

Clark v. Owens-Brockway Container (297 Ill. App. 3d 694) should be extended to cases 

where an employee exercises his right to seek medical treatment and to cases where an 

employer refuses to allow an employee to claim work absences as workers’ compensation 

leave, requires the employee to claim the absences as sick leave, then terminates the 

employee for violating the sick leave policy. 

¶ 24 I. Motion for Summary Determination of Facts

¶ 25 The first issue is whether the circuit court erred by denying Jon’s pretrial motion 

for summary determination of facts. 735 ILCS 5/2-1005(d) (West 2018). Any order 

denying a motion under section 2-1005(d) of the Code is not appealable because, by its 
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very nature, such an order is interlocutory and not final because it does not dispose of a 

claim. Morningside North Apartments I, LLC v. 1000 N. LaSalle, LLC, 2017 IL App 

(1st) 162274, ¶ 8. 

¶ 26 Moreover, regarding the reviewability of a matter, “[a]s a general rule, when a 

motion for summary judgment is denied and the case proceeds to trial, the denial of

summary judgment is not reviewable on appeal because the result of any error is merged 

into the judgment entered at trial.” Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., 

Inc., 199 Ill. 2d 325, 355 (2002). “The rationale for this rule is that review of the denial 

order would be unjust to the prevailing party, who obtained a judgment after a more 

complete presentation of the evidence.” Id. at 355-56. 

¶ 27 Applied to this case, the circuit court denied Jon’s motion for summary 

determination of facts because no major issues were found to be summarily determinable, 

and issues of fact were found to have existed, requiring resolution by conducting a trial 

on the merits. Because the matter went to a full trial, Jon may not challenge the denial of 

the pretrial motion for summary determination of facts on appeal, which was based on 

less evidence—obtained only from the pleadings and affidavits. See Paulson v. Suson, 

97 Ill. App. 3d 326, 328 (1981). The jury’s verdict in favor of SIPC based on the 

evidence at the trial further supports the circuit court’s conclusion that a summary 

determination of facts was inappropriate because genuine issues of fact existed. 

¶ 28 II. Jury Instructions

¶ 29 The next issue on appeal is whether the circuit court erred by refusing to give 

Plaintiff’s Jury Instructions 17 and 18. “The purpose of jury instructions is to convey to 
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the jurors the correct principles of law applicable to the evidence presented.” Martoccio 

v. Western Restaurants, Inc., 286 Ill. App. 3d 390, 392 (1997). “A trial court has 

discretion in determining which instructions to give.” LaSalle Bank, N.A. v. C/HCA 

Development Corp., 384 Ill. App. 3d 806, 813 (2008). “[T]he proper standard of review 

of a trial court’s refusal to give a requested jury instruction is abuse of discretion.” 

People v. McDonald, 2016 IL 118882, ¶ 69. “When deciding whether a trial court 

abused its discretion, a reviewing court will review the jury instructions in their entirety, 

to determine whether they fairly, fully and comprehensively informed the jury of the 

relevant law.” LaSalle Bank, 384 Ill. App. 3d at 813. “The trial court does not abuse its 

discretion by refusing to give a nonpattern instruction if an appropriate pattern instruction 

exists.” Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 285 

(2002). In fact, “[a] trial court is required to use an Illinois Pattern Jury Instruction when 

it is applicable in a civil case after giving due consideration to the facts and the prevailing 

law, unless the court determines that the instruction does not accurately state the law.” 

(Emphasis added.) Id. at 273. “If the pattern instruction does not accurately state the 

law, the court may instruct the jury pursuant to a nonpattern instruction.” Id. 

¶ 30 Here, Jon’s cause of action was retaliatory discharge. The jury instructions at 

issue are Plaintiff’s Instructions 17 and 18. Both are nonpattern instructions which were 

rejected by the circuit court. The instructions on the law of retaliatory discharge that 

were given to the jury were pattern instructions (IPI Civil (2018) Nos. 250.01, 250.02, 

15.01). Accordingly, we must determine if those instructions were appropriate (Schultz, 
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201 Ill. 2d at 285) by comprehensively, fairly, and fully informing the jury of the relevant 

law (LaSalle Bank, 384 Ill. App. 3d at 813). 

¶ 31 Plaintiff’s Instruction 3 (IPI Civil (2018) No. 250.01) was given and instructed the 

jury regarding the issues reflected in the parties’ pleadings as follows: 

 “[1] The Plaintiff claims that he was an employee of the Defendant on 

 January 27, 2015. 

 [2] The Plaintiff claims that while employed by [the] Defendant he had 

filed a workers’ compensation claim pursuant to the Illinois Workers’ 

 Compensation Act against the Defendant. 

 [3] The Plaintiff further claims that the reason stated in paragraph ‘two’ [2] 

 above was the proximate cause of his firing and of Plaintiff’s claimed damages. 

 [4] The Defendant denies that the Plaintiff was fired for the reason claimed 

 by the Plaintiff’s claimed damages. 

 [5] The Defendant claims that [the] Plaintiff was fired because the Plaintiff 

 abused his sick leave benefits in violation of Section 7.03 of the Collective 

 Bargaining Agreement.” 

¶ 32 Plaintiff’s Instruction 4 (IPI Civil (2018) No. 250.02) was given and instructed the 

jury on Jon’s burden of proof as follows: 

 “The plaintiff has the burden of proving each of the following propositions: 

 First, that the plaintiff was an employee of the defendant; 

 Second, that the plaintiff was fired from his employment with the 

 defendant; 
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 Third, that the plaintiff was fired because he filed a workers’ compensation 

 claim under the Illinois Workers’ Compensation Act[;] 

 Fourth, that the plaintiff sustained damages as a result of his firing; 

 Fifth, that the reason stated in paragraph ‘Third’ above was the proximate 

cause of his firing and resulting damages. 

 If you find from your consideration of all the evidence that each of these

 propositions has been proven, then your verdict should be for the plaintiff. On the 

other hand, if you find from your consideration of all the evidence that any of 

 these propositions has not been proven, then your verdict should be for the 

 defendant.” 

¶ 33 Plaintiff’s Instruction 8, the “short version” of IPI Civil (2018) No. 15.01, was 

also given, which defined “proximate cause” for the jury as follows: “When I use the 

expression ‘proximate cause,’ I mean a cause that, in the natural or ordinary course of 

events, produced the Plaintiff’s injury.” 

¶ 34 In order to recover damages for the tort of retaliatory discharge predicated upon 

his filing a claim under the Act, Jon had the burden of proving the following: “(1) that he 

was an employee before the injury; (2) that he exercised a right granted by the [Act]; and 

(3) that he was discharged and that the discharge was causally related to his filing a claim 

under the [Act],” Clemons v. Mechanical Devices Co., 184 Ill. 2d 328, 336 (1998). In 

order to determine causation in the case at bar, the jury was required to decide SIPC’s 

motive in terminating Jon. See id. 
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¶ 35 The jury instructions in this case informed the jury, inter alia, that Jon was 

required to prove that filing a claim under the Act was “a proximate cause of his firing 

and resulting damages.” IPI Civil (2018) No. 250.02. Moreover, the instructions defined 

“proximate cause” as “a cause that, in the natural or ordinary course of events, produced 

[Jon’s] injury.” IPI Civil (2018) No. 15.01. Therefore, the jury instructions that were 

given properly directed the jury to find liability only if Jon proved that he was terminated 

for exercising his rights under the Act. The pattern instructions given were consistent 

with traditional tort analysis and fairly, fully, and comprehensively informed the jury of 

the legal principles relevant to Jon’s burden of proof and the elements required to recover 

under his claim of retaliatory discharge. See LaSalle Bank, 384 Ill. App. 3d at 813. 

Accordingly, the circuit court did not abuse its discretion by refusing to give the 

nonpattern instructions—Plaintiff’s Instructions 17 and 18—as requested by the plaintiff. 

See Schultz, 201 Ill. 2d at 285.

¶ 36 III. Case Law Application 

¶ 37 The final issue on appeal concerns the application of Clark v. Owens-Brockway 

Container (297 Ill. App. 3d 694). Jon asks this court to extend the holding in Clark to 

cases where an employee exercises the right to seek medical treatment, and to cases 

where an employer refuses to allow an employee to claim work absences as workers’ 

compensation leave, requires the employee to claim the absences as sick leave, then 

terminates the employee for violating the sick leave policy. Jon argued the applicability 

of the holding in Clark to this case throughout the proceedings below. 
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¶ 38 The holding in Clark was pertinent to the particular facts of that case where the 

employer took it upon itself to determine the nature and extent of the employee’s work 

injury by hiring an investigator to observe the plaintiff’s activities while she was off work 

recovering from the injury and undergoing physical therapy, then terminating the plaintiff 

for “ ‘fraudulent *** misrepresentation and conduct’ in connection with her claims for 

workers’ compensation.” Id. at 696, 698-99. The reviewing court affirmed summary 

judgment in favor of the plaintiff, concluding that because the employer admitted that the 

termination “was connected to her workers’ compensation filing and her collection of 

benefits,” the termination was, “as a matter of law, ‘causally related’ to the filing of a 

claim under the [Act],” Id. at 698. In reaching its conclusion, the Clark court noted “that 

it is not the role of the employer, the circuit court, the jury, or this court to determine 

when Clark was able to return to work” and emphasized that “[t]he determination of the 

extent or duration of an employee’s injury or disability is a question of fact for the 

Industrial Commission.” (Emphasis omitted.) Id. at 700. 

¶ 39 We decline Jon’s invitation to extend the holding in Clark—which was based on 

the specific facts of that particular case—to create a per se application to this case, to 

cases where an employee simply exercises the right to seek medical treatment, or to cases 

where an employer refuses to allow an employee to claim work absences as workers’ 

compensation leave, requires the employee to claim the absences as sick leave, then 

terminates the employee for violating the sick leave policy. We so decline because Jon’s 

argument assumes facts that were not proven at trial. There were questions of fact 

regarding whether Jon was receiving treatment for any work-related injury and questions 
16 

of fact regarding whether SIPC knew that Jon was receiving treatment for any workrelated injury. 

¶ 40 Notably, there were no issues of fact in Clark, as summary judgment on the 

retaliatory discharge claim was granted and affirmed in favor of the plaintiff because 

there, causation was established as a matter of law by the employer’s admission that the 

termination was connected to the plaintiff’s filing the workers’ compensation claim and 

collecting benefits. Id. at 698. Conversely, issues of fact existed in this case. Jon had 

the opportunity to present his evidence yet failed to meet his burden to prove the 

elements of the retaliatory discharge claim. Accordingly, we refuse to apply the holding 

of Clark to this case. 

¶ 41 We conclude that the circuit court did not abuse its discretion by denying the 

motion for a new trial because it did not act arbitrarily without the employment of 

conscientious judgment, nor did it exceed the bounds of reason and ignore recognized 

principles of law, nor can we say that no reasonable person would take the position 

adopted by the circuit court. Frulla, 2018 IL App (1st) 172329, ¶ 26. 

¶ 42 CONCLUSION 

¶ 43 For the foregoing reasons, we affirm the March 25, 2019, order of the circuit court 

of Williamson County. 

¶ 44 Affirmed.