Lavat v. Fruin Colnon Corp.

• Decision Date: 31 July 1992
• Docket Number: No. 1-91-1570,1-91-1570
• Citation: 173 Ill.Dec. 914,232 Ill.App.3d 1013,597 N.E.2d 888
• Parties: , 173 Ill.Dec. 914, 126 Lab.Cas. P 57,512 Ralph W. LAVAT, Plaintiff-Appellant, v. FRUIN COLNON CORPORATION, McCartin-McAuliffe Mechanical Contractor, Inc., Kelso Burnett Company, and Power Systems, Inc., doing business as Baldwin Associates, A Partnership, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 888

597 N.E.2d 888

232 Ill.App.3d 1013, 173 Ill.Dec. 914,

126 Lab.Cas. P 57,512

Ralph W. LAVAT, Plaintiff-Appellant, v. FRUIN COLNON CORPORATION, McCartin-McAuliffe Mechanical

Contractor, Inc., Kelso Burnett Company, and Power

Systems, Inc., doing business as Baldwin

Associates, A Partnership,

Defendants-Appellees.

No. 1-91-1570.

Appellate Court of Illinois,

First District, Sixth Division.

July 31, 1992.

Leonard M. Ring and Associates, P.C., Chicago (Leonard M. Ring, Margaret A. McGuire, of counsel), for plaintiff-appellant.

John B. Lashbrook, Diane Karp, Conklin & Roadhouse, Chicago, for defendants-appellees.

Justice LaPORTA ^* delivered the opinion of the court:

Plaintiff Ralph W. Lavat appeals the dismissal by summary judgment of his two-count complaint for libel and retaliatory discharge filed against defendants Fruin Colnon Corp., McCartin-McAuliffe Mechanical Contractor, Inc., Kelso Burnett Co. and Power Systems, Inc., doing business as Baldwin Associates, A Partnership (Baldwin).

Baldwin contends that Lavat was fired from its nuclear power plant construction project for lying on his resume with regard to the education he received from American University in Washington D.C. and the Cleveland Institute of Electronics. Lavat contends that his resume is truthful in all material aspects and that he was libeled by Baldwin when Baldwin informed the Bureau of Employment Security, Division of Unemployment Insurance (Unemployment Division) that Lavat was fired for "falsification of employment records." Lavat sought damages for retaliatory discharge contending that he was fired because he went to the Nuclear Regulatory Commission (NRC) with concerns about being pressured to "sign off" on safety documentation.

On appeal the plaintiff raises as issues: whether, under the innocent construction rule, the statement "falsification of employment records" may be innocently construed when that statement is given as the reason for discharge and the employee is ineligible for rehire, and whether a genuine issue of material fact exists with respect to the motive of the employer when it fired the plaintiff.

The majority of the facts of this case are not in dispute.

On May 13, 1986, Ralph Lavat filed an amended complaint at law against Baldwin alleging one count of libel and one count of retaliatory discharge. The complaint contended Lavat was hired July 5, 1983 as a quality assurance document review engineer and that he was promoted from time to time for faithfully performing his duties. The complaint alleged that in April 1984 Lavat reported to the NRC violations by Baldwin of NRC codes, standards and regulatory requirements. Plaintiff alleged that "[s]ometime thereafter BALDWIN learned that the NRC found it in violation of certain document control procedures and that the plaintiff was the source of the report to the NRC. On August 27, 1984, the plaintiff's employment was terminated by BALDWIN."

Plaintiff alleged that as a pretext for his firing Baldwin claimed plaintiff had falsified his employment application when in fact the "application was true in every material respect." Plaintiff alleged that he was libeled when, in September of 1984 Baldwin composed and caused to be published to the Unemployment Division a statement that plaintiff had been fired for "falsification of employment records."

Plaintiff alleged that the statement was libelous because it was false in fact and malicious in intent and published by Baldwin with knowledge of its falsity. Plaintiff also alleged, "on information and belief, BALDWIN, published said statement to prospective employers with knowledge of falsity or a reckless disregard of its truth of [sic] falsity."

Plaintiff alleged that he suffered damage to his reputation and good name and was brought into public disgrace and scandal. He alleged he was prevented from gaining other employment, or employment at a comparable salary and has been "ostracized in the industry."

In the retaliatory discharge count, plaintiff alleged he was hired by Baldwin because he possessed the educational qualifications and prior work experience required for the job. Plaintiff alleged that "plaintiff became aware of certain practices by BALDWIN in collusion with the NRC's licensee, Illinois Power Company, and in violation of the said codes, standards, and regulatory requirements, including numerous requests by his superiors to certify procurement documents which in fact lacked sufficient underlying data to permit certification." Plaintiff alleged that he reported his findings to the management of Baldwin and informed the NRC of the illegal practices in April of 1984.

Plaintiff alleged that he was fired in August of 1984 despite the fact that three other document reviewers "whose work was of the same quality as plaintiff and whose educational level was the same or less than that of plaintiff" were allowed to resign.

Plaintiff alleged that the reason given for his firing, "falsification of employment records," was pretextual and in retaliation for his reporting Baldwin to the NRC and his refusal to certify inappropriate procurement documents. Plaintiff further alleged that his firing was in violation of public policy.

Baldwin filed an answer and then an amended answer with four affirmative defenses. In response to the libel count, Baldwin admitted that it hired plaintiff as a document reviewer, that he performed his job satisfactorily and was promoted on one occasion. Baldwin admitted that it was informed in April of 1984 of plaintiff's contact with the NRC and that plaintiff was discharged in August for falsification of employment records. Baldwin admitted that in September 1984 it communicated to the Unemployment Division that plaintiff had been discharged for falsification of employment records.

Baldwin alleged three affirmative defenses to the libel count: (1) the statement "falsification of employment records" was true; (2) the communication by Baldwin to the Unemployment Division was absolutely privileged pursuant to Ill.Rev.Stat. ch. 48, p 640; and (3) the communication was conditionally privileged under common law.

In response to the retaliatory discharge count, Baldwin admitted that it certified plaintiff for certain positions prior to a completion of all background checks and that three employees who had not been properly certified did resign from Baldwin. Defendant admitted that plaintiff was fired for falsification of employment records. As an affirmative defense, Baldwin contended that it is against public policy to permit an unqualified individual from bringing a wrongful discharge action as a result of his discharge from a certified position as a quality assurance employee at a nuclear facility.

In May of 1990, defendant moved for summary judgment, contending that Lavat was fired because he lied on his resume and not in retaliation for anything Lavat had done. Baldwin contended that Lavat was not libeled because the statement to the Unemployment Division was both privileged and true.

Baldwin also pointed out that Lavat previously had filed a libel action against Baldwin in another county and in that action admitted that his resume was false. Lavat voluntarily dismissed that action on August 9, 1985 and then filed his first complaint in Cook County, which was subsequently amended.

Baldwin contended that it fired Lavat for valid, non-pretextual and nonretaliatory reasons. Baldwin attached to its motion the affidavits of three people, two who were Lavat's superiors and involved in his firing and the third, a woman conducting the educational audit.

Larry W. Osborne, Baldwin's manager for Quality and Technical Services at the Clinton Power Station, swore by affidavit that he was responsible for all quality assurance and quality engineering activities. He was the liaison between Illinois Power and the NRC with regard to inspections and reports. He stated that he was responsible for assuring that people under his charge were free from intimidation and would suffer no retaliation for raising safety concerns with the NRC.

He stated that Baldwin policy provided three avenues for quality assurance inspectors to voice their concerns over potential safety problems: (1) Baldwin supervisors and management; (2) Illinois Powers' "Safe Team," a confidential hotline; and (3) unrestricted access to the NRC including an on-site office.

He stated that no employee, including Lavat, was ever fired in violation of the Energy Reorganization Act of 1974. (42 U.S.C. § 5851(a).) The ERA forbids an employer from discharging an employee or otherwise discriminating against the employee because the employee pursued a complaint either through the ERA or the Atomic Energy Act of 1954, both governing nuclear power plant construction and operations.

Osborne stated that Lavat initially was assigned to the document review group of quality assurance as a document reviewer and later to quality engineering as a quality engineer. Osborne stated that in April 1984 he heard that Lavat received a threatening phone call at home and he released Lavat's unlisted phone number and address to the NRC at the NRC's request. He stated that no adverse action was taken against Lavat and the NRC requested no further information concerning Lavat. He stated that the NRC never sanctioned Baldwin for conduct brought to the NRC's attention by Lavat.

Osborne stated that Baldwin hired its document reviewers and quality engineers in compliance with NRC regulations and the standards required by Illinois Power and Baldwin Associates. He detailed the educational requirements for someone in Lavat's position.

Osborne stated that to comply with NRC requirements, Baldwin undertook a 100% audit of its quality assurance inspection employees to verify their educational and experiential requirements. He stated that the audit resulted in the identification of three other individuals who had misstated their educational level, though they...