Kelsay v. Motorola, Inc.

• Decision Date: 31 August 1977
• Docket Number: No. 13290,13290
• Citation: 366 N.E.2d 1141,9 Ill.Dec. 630,51 Ill.App.3d 1016
• Parties: , 9 Ill.Dec. 630 Marily Jo KELSAY, Plaintiff-Appellee, v. MOTOROLA, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1141

366 N.E.2d 1141

51 Ill.App.3d 1016, 9 Ill.Dec. 630

Marily Jo KELSAY, Plaintiff-Appellee, v. MOTOROLA, INC., Defendant-Appellant.

No. 13290.

Appellate Court of Illinois, Fourth District.

Aug. 31, 1977.

Robert V. Nystrom, Chicago, for defendant-appellant.

Mike McElvain, Bloomington, for plaintiff-appellee.

TRAPP, Justice.

Plaintiff's complaint alleged that defendant wrongfully discharged plaintiff from her employment following the filing of her claim for injury under the Workmen's Compensation Act. Characterizing defendant's conduct as wilful and wanton, plaintiff sought actual damages in the sum of $4000 and punitive damages amended to the sum of $500,000.

The trial court directed a verdict for plaintiff as to liability and the jury awarded $1000 in actual damages and $25,000 in punitive damages. The awarded actual damages was remitted to $749.

The complaint is framed solely in tort alleging plaintiff's injury in February, 1973, in the course of her employment, the filing of an application before the Industrial Commission in March, and that plaintiff was discharged by defendant's personnel manager on June 6, after several conversations concerning the dismissal of the pending application before the Industrial Commission.

The record shows that in November, 1973, plaintiff entered into a settlement contract in the sum of $745.50, computed upon a weekly wage of $74. The settlement contract discloses that plaintiff's medical expenses had been paid by the employer and that she had no unpaid expenses for care or treatment.

Defendant's position is that plaintiff's employment may be terminated at any time by either party at will, without liability. The fact that the employment was at will is not disputed. It has been the established rule in Illinois that where the employment relation specifies no fixed duration it is a hiring at will which may be terminated at will with or without cause and with no right of action for discharge. (I.L.P. Employment, §§ 7, 21, 26.) Roemer v. Zurich Insurance Co. (1975), 25 Ill.App.3d 606, 323 N.E.2d 582; Long v. Arthur Rubloff & Co. (1975), 27 Ill.App.3d 1013, 327 N.E.2d 346.

Plaintiff argues that a discharge under such allegation is an act in violation of public policy stated in the Workmen's Compensation Act (Ill.Rev.Stat.1973, ch. 48, pars. 138.1, et seq.) and as such creates a tortious wrong which authorizes actual and punitive damages.

The Workmen's Compensation Act was adopted to provide a new system for compensating employees' injuries in place of the common law rights formerly pursued. (Grand Trunk Western Ry. Co. v. Industrial Commission (1920), 291 Ill. 167, 125 N.E. 748.) Its stated purpose is to provide that cases of injury incurred in the course of employment shall be compensated by the industry. Shell Oil Co. v. Industrial Commission (1954), 2 Ill.2d 590, 119 N.E.2d 224.

The Preamble of the Act, approved July, 1951, states the purpose of:

"(P)roviding for the enforcement and administering thereof, and a penalty for its violation * * *."

Section 26 of the Act (Ill.Rev.Stat.1973, ch. 48, par. 138.26), provides:

"Any wilful neglect, refusal or failure to do the things required to be done by any section, clause or provision of this Act, on the part of the persons herein required to do them, or any violation of any of the provisions or requirements hereof, or any attempt to obstruct or interfere with any court officer, or any other person charged with the duty of administering or enforcing this Act, is a petty offense" (Emphasis supplied),

to be enforced by the State's Attorney or the Attorney General upon the request of the Industrial Commission.

At the time of this complaint there was no provision of the Act directed to the question of the right of an employer to discharge an employee at will. On the contrary, established case law in Illinois remained that an employee at will could be discharged without cause. In such circumstance it is appropriate that liability be determined and made clear by the legislative act so that the employer may clearly understand both the rights and liabilities concerned.

Section 11 of the Act (Ill.Rev.Stat.1973, ch. 48, par. 138.11), provides "The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated * * *." (Emphasis supplied.)

An amendment effective July 1, 1975, provides:

"It shall be unlawful for any employer, individually or through any insurance company or service or adjustment company, to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his rights or remedies granted to him by this Act." (Ill.Rev.Stat.1973, ch. 48, par. 138.4(h).)

An examination of the several statutes dealing with matters of employment discloses that the legislature had relied upon a system of statutory penalties for enforcement of the respective statutes. So, in Illinois Revised Statutes 1975, chapter 48, we find such provisions in paragraphs 881-887 relating to age discrimination; in paragraphs 5-6 relating to the hours of employment of women; in paragraphs 8a-8g providing for one day of rest in seven; in paragraphs 31.1-31.19 relating to the employment of children, and in paragraph 39.11 relating to the discharge of an employee for making a wage assignment. Such last provision making discharge unlawful and providing a penalty for violation was first effective on October 1, 1975.

In matters of employment the legislature has provided for a civil action as to violations of the minimum wage law (ch. 48, pars. 1001-1012) which only permits the recovery of an underpayment of wages.

We are directed to the Service Men's Employment Tenure Act (Ill.Rev.Stat.1973, ch. 1261/2, par. 32, et seq.), declaring the public policy where men enter into military service. That statute specifies this particular form of relief in restoration to employment and compensation. It does not provide a civil action in tort. Similarly, the Fair Employment Act (Ill.Rev.Stat.1973, ch. 48, par. 851, et seq.), designates the statutory procedures concerning grievances and the forms of relief to be provided. It does not create a civil action in tort.

In one instance, the Act relating to equal opportunity for the handicapped (Ill.Rev.Stat.1971, ch. 38, par. 65-21, et seq.), the statute specifically creates a civil action for damages as to conduct which violates the stated public policy.

The interest of the employee has been likened to that of an individual protected under the Federal Civil Rights Act. That Act, however, by statute creates a cause of action for damages at law and equity. (42 U.S.C.A., sec. 1893.) Similarly, the Civil Rights statute of this State (Ill.Rev.Stat.1973, ch. 38, par. 13-3), specifically creates its criminal penalty, as well as a cause of action for damages.

Plaintiff likens this case to that of a "retaliatory eviction" for purposes of creating an action in tort. In 1963, the legislature adopted the statute (Ill.Rev.Stat.1963, ch. 30, par. 71) which declared it to be against public policy to terminate or refuse renewal of a lease because the tenant complained of building violations, and that a lease provision effecting a contrary result was null and void. Such provision has been construed to create an affirmative defense in an action to evict. Clore v. Fredman (1974), 59 Ill.2d 20, 319 N.E.2d 18.

In oral argument plaintiff relied upon the authority of Frampton v. Central Indiana Gas Co. (1973), 260 Ind. 249, 297 N.E.2d 425, 63 A.L.R.3d 973.

In Frampton, the issue was the sufficiency of the pleading to state a cause of action seeking actual and punitive damages upon allegations comparable to those alleged here. The trial court had entered judgment for the defendant on the pleading. Upon examination of the language of the Indiana statute:

"No contract or agreement, written or implied, no rule, regulation or other device shall, in any manner, operate to relieve any employer in whole or in part of any obligation created by this act." (Emphasis supplied.)

The court stated:

"We believe the threat of discharge to be a 'device' within the framework of 22-3-2-15, and hence, in clear contravention of public policy. By denying transfer and allowing the trial court's dismissal to stand we would be arming unethical employers with common law authority. * * * "

It does not appear that the Indiana statute provided a system of penalties and means of enforcement comparable to the statutes concerning employment in Illinois. It is also apparent that the Supreme Court of Indiana was construing its statute as a source of authority to sue.

Subsequently to submission in this court, plaintiff presented as supplemental authority Sventko v. The Kroger Co. (1976), 69 Mich.App. 644, 245 N.W.2d 151. In three opinions it was held to be error to sustain a demurrer to a complaint...