Bertling v. Roadway Exp., Inc., 83-554

• Decision Date: 06 January 1984
• Docket Number: No. 83-554,83-554
• Citation: 459 N.E.2d 265,121 Ill.App.3d 60,76 Ill.Dec. 628
• Parties: , 76 Ill.Dec. 628 Phillip BERTLING, Plaintiff-Appellant, v. ROADWAY EXPRESS, INC., John Coulsen, Damen Lewis, Bill Drack, and Steve Warren, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 265

459 N.E.2d 265

121 Ill.App.3d 60, 76 Ill.Dec. 628

Phillip BERTLING, Plaintiff-Appellant, v. ROADWAY EXPRESS, INC., John Coulsen, Damen Lewis, Bill Drack, and Steve Warren, Defendants-Appellees.

No. 83-554.

Appellate Court of Illinois First District, Fifth Division.

Jan. 6, 1984.

Arnold & Kadjan, Chicago (L. Steven Platt, Chicago, of counsel), for plaintiff-appellant.

Vedder, Price, Kaufman & Kammholz, Chicago (James C. Franczek, Jr. and Andrea R. Waintroob, Chicago, of counsel), for defendants-appellees.

MEJDA, Presiding Justice:

Plaintiff appeals from a final order of the circuit court which dismissed his complaint with prejudice on defendants' motion pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1981, ch. 110, par. 2-619). The complaint alleged that plaintiff had been discharged from his employment as a dock worker with the corporate defendant in retaliation for his filing of workers' compensation claims. Defendants' motion to dismiss asserted that plaintiff's cause of action for retaliatory discharge was barred by his submission of the controversy to arbitration. The trial court's order stated that the complaint was dismissed because "the matters contained therein are barred by a final binding arbitration decision." For the reasons which follow, we affirm the judgment of the trial court.

The complaint alleged that plaintiff was employed by the corporate defendant ("Roadway") at all relevant times. While performing his normal duties on the job, plaintiff sustained a spinal injury and subsequently filed a workers' compensation claim against Roadway. Plaintiff sustained another injury on February 10, 1982. Plaintiff filed a claim pertaining to the second injury on March 22, 1982. On April 9, 1982, the first claim was settled and on April 21, 1982, Roadway discharged plaintiff. Plaintiff contended that from the time that he filed his first claim for compensation until his discharge, Coulsen (also referred to as "Coulson"), Lewis, Drack and Warren (the "individual defendants"), as Roadway's agents and employees, engaged in a pattern and practice of harassment designed to intimidate plaintiff and to induce him not to pursue his workers' compensation claims. The complaint concluded that as a result of these actions, plaintiff had suffered financial and other damage, and prayed for money damages and reinstatement.

Defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Ill.Rev.Stat.1981, ch. 110, par. 2-619(a)(9)). The basis for the motion was that plaintiff's cause of action was barred by a final and binding arbitration decision. The affidavit of John Coulsen, one of the individual defendants and terminal manager of the facility at which plaintiff was employed, was submitted in support of the motion. The affidavit stated that Roadway and Local 710 of the International Brotherhood of Teamsters were parties to a series of collective bargaining agreements which prescribed the terms and conditions of employment of dock workers, including plaintiff. A copy of the agreement was appended to the affidavit. Under Article 24 of the agreement, an employee could only be terminated for "just cause." Article 17, section 1 of the agreement created a Joint Committee to settle disputes between the employer and the local union. Subparagraph A of section 1 provided that "[w]here a Joint Committee by a majority vote settles a dispute no appeal may be taken. Such a decision will be final and binding on both parties."

Coulsen's affidavit stated that on April 28, 1982, plaintiff grieved his discharge to the Joint Committee which, on June 1, 1982, determined that plaintiff's discharge had been for "just cause" under the collective bargaining agreement. Plaintiff's grievance, a copy of which was appended to defendants' motion to dismiss, stated that:

"I am appealing my discharge of 4-21-82. I strongly deny all allegations of failure to perform work assignments at Roadway Terminal (309) Chicago Heights. I also protest termination brought upon me by such allegations. Last month I received a suspention [sic] for insubordination charges subsequently the greivance [sic] board ruled in my favor and suspention [sic] was ruled unjustified. I appeal vehemently to the greivance [sic] board at this time to stop Roadway Express (309) and Terminal manager John Coulson and his staff of managers from harrassment [sic] and mental cruelty which I feel has been brought upon me because of injuries sustained while at work."

On October 15, 1982, the trial court dismissed the complaint on the ground that the cause of action was barred by a final and binding arbitration decision. Plaintiff filed a "motion to reconsider" together with an affidavit stating substantially that the arbitration committee did not consider plaintiff's filing of workers' compensation claims in making its decision. On February 23, 1983, the trial court denied plaintiff's motion and plaintiff thereafter perfected an appeal to this court.

OPINION

Section 2-619(a) of the Code of Civil Procedure (formerly section 48 of the Civil Practice Act) provides that "[d]efendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit: * * * (9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." (Ill.Rev.Stat.1981, ch. 110, par. 2-619(a)(9).) "An 'affirmative matter' under this section is 'something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint.' Austin View Civic Organization v. City of Palos Heights (1980), 85 Ill.App.3d 89, 96 405 N.E.2d 1256 * * *." (Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill.App.3d 247, 252, 61 Ill.Dec. 22, 433 N.E.2d 1350.) In light of the procedural posture of the instant case, the issue before us is whether a prior arbitration decision that an employee was terminated for "just cause" precludes that employee from maintaining a retaliatory discharge action grounded on the same factual basis upon which the arbitration proceeding was founded. As a preliminary caveat to our discussion, we note that neither party has invoked the doctrine of federal preemption (see generally Thompson v. Monsanto Co. (Tex.Civ.App.1977), 559 S.W.2d 873) and we accordingly have no occasion to apply that doctrine in the decision of this case.

The supreme court recognized the tort of retaliatory discharge in Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353. In that case the court held that "an employer's otherwise absolute power to terminate an employee at will should [not] prevail when that power is exercised to prevent the employee from asserting his statutory rights under the Workmen's Compensation Act." (74 Ill.2d 172, 181, 23 Ill.Dec. 559, 384 N.E.2d 353.) "In Wyatt v. Jewel Cos. (1982), 108 Ill.App.3d 840, 439 N.E.2d 1053, this court stated that to allow a cause of action for retaliatory discharge to an employee at will while denying it to a union member, would lead to an absurd result since punitive damages would be available to an employee at will, but would not be available to an employee protected by a union contract, despite the fact that union contracts are specifically designed to protect against discharge other than for cause." (Midgett v. Sackett-Chicago, Inc. (1983), 118 Ill.App.3d 7, 9, 73 Ill.Dec. 843, 454 N.E.2d 1092; contra Cook v. Caterpillar Tractor Co. (1980), 85 Ill.App.3d 402, 40 Ill.Dec. 864, 407 N.E.2d 95; Deatrick v. Funk Seeds International (1982), 109 Ill.App.3d 998, 65 Ill.Dec. 534, 441 N.E.2d 669; Lamb v. Briggs Manufacturing, A Division of Celotex Corp. (7th Cir.1983), 700 F.2d 1092; see also Carnation Co. v. Borner (Tex.1980), 610 S.W.2d 450.) The parties have not questioned the applicability to this case of the rule announced in Wyatt. The question posed in this case is whether a union member who does exercise the grievance procedure established by a collective bargaining contract and receives a...