Hinthorn v. Roland's of Bloomington, Inc.

• Decision Date: 29 January 1987
• Docket Number: No. 4-86-0461,4-86-0461
• Parties: , 105 Ill.Dec. 122, 106 Lab.Cas. P 55,693, 1 IER Cases 1442 Patricia HINTHORN, Plaintiff-Appellant, v. ROLAND'S OF BLOOMINGTON, INC., a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1128

503 N.E.2d 1128

151 Ill.App.3d 1006, 105 Ill.Dec. 122,

106 Lab.Cas. P 55,693,

1 IER Cases 1442

Patricia HINTHORN, Plaintiff-Appellant, v. ROLAND'S OF BLOOMINGTON, INC., a Corporation, Defendant-Appellee.

No. 4-86-0461.

Appellate Court of Illinois,

Fourth District.

Jan. 29, 1987.

Law Offices of Strodel, Kingery & Durree, Peoria (James R. Carter, of counsel), for plaintiff-appellant.

Donald W. Wilcox, Jr., Thomson, Weintraub & Thompson, Bloomington, for defendant-appellee.

Justice GREEN delivered the opinion of the court:

This case concerns the sufficiency of a complaint to state a cause of action for the tort of retaliatory discharge first recognized in this state in Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353. The essential requirements for that tort were later described as being "that [an] employer discharge [an] employee in retaliation for the employee's activities, and that the discharge [was] in contravention of a clearly mandated public policy." (Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 134, 52 Ill.Dec. 13, 18, 421 N.E.2d 876, 881.) Here, the dispute between the parties arises because (1) rather than stating that defendant Roland's of Bloomington, discharged plaintiff, Patricia Hinthorn, the complaint alleges that plaintiff resigned after defendant's vice president inferred that plaintiff would be discharged if she did not do so; and (2) plaintiff's employment was alleged to have terminated before she had filed any claim for workers' compensation benefits or threatened to do so.

The complaint was filed in the circuit court of McLean County on September 6, 1985. Subsequently, plaintiff filed amended and second amended complaints on September 23, 1985, and March 6, 1986, respectively. Following a hearing on the latter complaint, it was dismissed with prejudice on June 5, 1986, for failure to state a cause of action. Plaintiff has appealed.

The second amended complaint alleged: (1) On February 8, 1985, while in defendant's employment, plaintiff received a back injury which arose out of and in the course of that employment; (2) during the previous 12-month period, she had two other injuries which arose out of and in the course of her employment and for which she made a claim for medical bills; (3) on February 11, 1985, plaintiff reported her injury to her supervisor and sought medical attention; (4) she later met with a vice president of defendant and stated she was in pain and needed medical attention; (5) the vice president told her "you have been getting hurt too much" and then said that if she signed a certain resignation form she would be in a position of having left of her own will; (6) the vice president directed her to sign the form; (7) she signed the form not fully understanding its meaning but understanding that if she did not sign, she would be fired; (8) defendant knew plaintiff was entitled to medical care for her injuries and recognized that she could file a workers' compensation claim; (9) defendant acted with the "intent to inhibit and interfere with plaintiff in the exercise of her rights under the Illinois Workers' Compensation Act" (Ill.Rev.Stat.1985, ch. 48, par. 138.1 et seq.); (10) the termination of plaintiff's employment was "a retaliatory act to so interfere with plaintiff's exercise of her rights under the" Act; and (11) as a result of defendant's conduct as described, plaintiff lost income and wages.

In dismissing the complaint, the circuit court relied heavily upon the decision of this court in Scheller v. Health Care Services Corp. (1985), 138 Ill.App.3d 219, 92 Ill.Dec. 471, 485 N.E.2d 26, where the sufficiency of a complaint to allege a retaliatory discharge was also in issue. There, as here, the plaintiff was alleged to have resigned rather than to have been discharged. There, the allegation was that the employer's agent had intentionally made work so miserable and unhealthy for the employee that she resigned. That plaintiff had characterized her termination of employment as a constructive discharge and had cited the case of Beye v. Bureau of National Affairs (1984), 59 Md.App. 642, 477 A.2d 1197, where a termination similarly arising from a resignation by an employee after the employer had purposely made employment miserable for the employee had been deemed to be actionable as a constructive discharge. This court rejected that theory concluding that to do otherwise would be contrary to the recently stated policy in Barr v. Kelso-Burnett Co. (1985), 106 Ill.2d 520, 88 Ill.Dec. 628, 478 N.E.2d 1354, of not expanding further the retaliatory discharge concept.

The Scheller opinion indicated that the plaintiff there was alleged to have voluntarily terminated her employment. (138 Ill.App.3d 219, 223, 92 Ill.Dec. 471, 473, 485 N.E.2d 26, 28.) In determining that the retaliatory discharge doctrine should not cover such a situation, the court stated that "constructive discharge is not an actionable concept" in regard to retaliatory discharge. (138 Ill.App.3d 219, 225, 92 Ill.Dec. 471, 475, 485 N.E.2d 26, 30.) The circuit court here deemed the initial complaint to be based on the rejected constructive discharge concept and dismissed the complaint accordingly. In doing so, the circuit court was...