Selof v. Island Foods, Inc.

623 N.E.2d 386, 251 Ill. App. 3d 675, 191 Ill. Dec. 141
Appellate Court of Illinois·Decided November 5, 1993·No. 2-92-1177·Published·Cited by 2 cases

Opinion

623 N.E.2d 386 (1993)
251 Ill. App.3d 675
191 Ill.Dec. 141

William SELOF, Plaintiff-Appellant,
v.
ISLAND FOODS, INC., Defendant-Appellee.

No. 2-92-1177.

Appellate Court of Illinois, Second District.

November 5, 1993.

Cowlin, Ungvarsky, Curran & Coppedge, Michael E. Coppedge, Cowlin, Ungvarsky, Curran & Coppedge, Crystal Lake, for William Selof.

Pitler & Mandell, Chicago, Philip L. Mandell, Sigi M. Offenbach, Pitler and Mandell, for Island Foods, Inc.

Justice DOYLE delivered the opinion of the court:

On February 20, 1992, plaintiff, William Selof, filed a complaint, sounding in retaliatory discharge, against defendant, Island Foods, Inc. The brief complaint alleged that, prior to December 15, 1991, plaintiff was employed by defendant. On November 15, 1991, plaintiff was admitted to a hospital for alcohol treatment and rehabilitation, and he notified defendant of his hospitalization on November 16. Plaintiff stated that he was informed that defendant "supported him one-hundred percent." However, on December 7, 1991, defendant discharged plaintiff from employment. The complaint concludes that the discharge was "for no cause other than the fact that he was hospitalized and seeking treatment for alcohol rehabilitation."

Relying on sections 1-102 and 8-103 of the Illinois Alcoholism and Other Drug Dependency Act (Act) (20 ILCS 305/1-102, 8-103 (West 1992)) directed principally at the need to provide coordinated programs for the prevention, intervention and treatment for alcohol and drug abuse or addiction in this State, plaintiff further alleged that his discharge by defendant was a wilful and wanton violation of a clear and compelling mandate of public policy of the State of Illinois and that he was damaged thereby. The trial court granted defendant's motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)) and granted plaintiff 28 days to file an amended complaint. Plaintiff elected to stand on his complaint, and the court dismissed the cause with prejudice on August 13, 1992. Plaintiff maintains on appeal that it was error for the trial court to dismiss his complaint because, in his view, it sufficiently *387 states a cause of action for retaliatory discharge.

The tort of retaliatory discharge was first recognized by our supreme court in Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, as an exception to the general rule that "at-will" employment is terminable at any time for any or no cause. (See Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 128, 52 Ill.Dec. 13, 421 N.E.2d 876.) The Kelsay court found it necessary to establish this cause of action where a worker exercised her statutory right to file a worker's compensation claim and the employer discharged her contrary to the express public policy of the workers' compensation law then in effect which protected employees by affording them prompt compensation for their injuries. (See Ill.Rev. Stat.1973, ch. 48, § 138.1 et seq. (now codified, as amended, at 20 ILCS 305/1 et seq. (West 1992)); Kelsay, 74 Ill.2d at 180-81, 23 Ill.Dec. 559, 384 N.E.2d 353.) The court reasoned that the statutory scheme would be seriously undermined if the employers were permitted to abuse their power to terminate by threatening to discharge employees seeking compensation for covered injuries. Kelsay, 74 Ill.2d at 182, 23 Ill. Dec. 559, 384 N.E.2d 353.

The supreme court recognized this tort where it appeared that there was no other suitable remedy available to the employee (Kelsay, 74 Ill.2d at 182, 23 Ill.Dec. 559, 384 N.E.2d 353) and where the employee was discharged from employment in "`contravention of a clearly mandated public policy.'" (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill.2d 502, 516, 92 Ill.Dec. 561, 485 N.E.2d 372 (Moran, J., dissenting), quoting Palmateer, 85 Ill.2d at 134, 52 Ill.Dec. 13, 421 N.E.2d 876; cf. Balla v. Gambro, Inc. (1991), 145 Ill.2d 492, 498, 501, 164 Ill.Dec. 892, 584 N.E.2d 104 (tort of retaliatory discharge is limited and narrow exception to general rule of at-will employment, and public policy of protecting lives and property was otherwise adequately safeguarded without extending tort to in-house counsel who threatened to report perceived violations of safety regulations).) In determining whether a plaintiff has stated a cause of action for retaliatory discharge based on a violation of clearly mandated public policy, this court must take into account that the tort has thus far been narrowly circumscribed. See Barr v. Kelso-Burnett Co. (1985), 106 Ill.2d 520, 525, 88 Ill.Dec. 628, 478 N.E.2d 1354.

To establish a prima facie case of retaliatory discharge, a plaintiff must show that (1) he exercised a statutory or constitutional right; (2) he was discharged in retaliation for his activity; and (3) the defendant's conduct was motivated by unlawful considerations, that is, the discharge was in contravention of a clearly mandated public policy (Fellhauer v. City of Geneva (1991), 142 Ill.2d 495, 505, 154 Ill.Dec. 649, 568 N.E.2d 870). See Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill.2d 281, 287, 122 Ill.Dec. 805, 527 N.E.2d 303; Eisenbach v. Esformes (1991), 221 Ill.App.3d 440, 443, 163 Ill.Dec. 930, 582 N.E.2d 196.

In Illinois, actions for retaliatory discharge have been allowed in two circumstances: (1) when an employee has been discharged for asserting a right to workers' compensation; and (2) when an employee has been discharged for reporting illegal or improper conduct ("whistle blowing" cases). (Layne v. Builders Plumbing Supply Co. (1991), 210 Ill.App.3d 966, 974, 155 Ill.Dec. 493, 569 N.E.2d 1104; see Eisenbach, 221 Ill.App.3d at 443-44, 163 Ill. Dec. 930, 582 N.E.2d 196.) In one other situation where the tort was recognized, the employee was discharged after refusing to work with an improperly functioning radioactive machine which would allegedly expose him to radiation hazards in violation of Federal safety regulations. Layne, 210 Ill.App.3d at 974, 155 Ill.Dec.

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Selof v. Island Foods, Inc., 623 N.E.2d 386, 251 Ill. App. 3d 675, 191 Ill. Dec. 141 (Ill. Ct. App. 1993).

623 N.E.2d 386 (Selof v. Island Foods, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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