Midgett By and Through Midgett v. Sackett-Chicago, Inc.

• Decision Date: 21 September 1983
• Docket Number: INC,SACKETT-CHICAG,No. 81-3040,81-3040
• Parties: , 73 Ill.Dec. 843, 114 L.R.R.M. (BNA) 3089, 1 IER Cases 265 Terry MIDGETT, Micheline Midgett, his wife, Lisa Lucaccioni, a minor, Michelle Lucaccioni, a minor, Terry Midgett, a minor and John Midgett, a minor, By and Through their next friend and kin, Micheline MIDGETT, their mother and guardian, Plaintiffs-Appellants, v.and David J. Schimp, Individually and as Officer, Employee and Agent of Sackett-Chicago, Inc., and Unknown Defendants, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1092

454 N.E.2d 1092

118 Ill.App.3d 7, 73 Ill.Dec. 843,

114 L.R.R.M. (BNA) 3089,

1 IER Cases 265

Terry MIDGETT, Micheline Midgett, his wife, Lisa Lucaccioni,

a minor, Michelle Lucaccioni, a minor, Terry Midgett, a

minor and John Midgett, a minor, By and Through their next

friend and kin, Micheline MIDGETT, their mother and guardian, Plaintiffs-Appellants, v. SACKETT-CHICAGO, INC. and David J. Schimp, Individually and as Officer, Employee and Agent of Sackett-Chicago, Inc., and Unknown Defendants,

Defendants-Appellees.

No. 81-3040.

Appellate Court of Illinois,

First District, Third Division.

Sept. 21, 1983.

Allen Allred, Thompson & Mitchell, St. Louis, Mo., for defendants-appellees.

Nicholas T. Kitsos & Associates, Chicago, for plaintiffs-appellants.

McGILLICUDDY, Justice:

Plaintiffs appeal from the dismissal with prejudice of their action in tort for retaliatory discharge for failure to state a cause of action against defendants, Sackett-Chicago, Inc., and David J. Schimp, et al. (Sackett).

On January 31, 1979, Terry Midgett (Midgett) suffered an injury in the course of his employment with Sackett. Alleging partial disability, Midgett filed a workers' compensation claim with the Illinois Industrial Commission which was eventually settled. In January 1980, while the claim was pending, Midgett was discharged by Sackett. Midgett brought an action in tort in his own name and on behalf of his wife and minor children seeking damages for retaliatory discharge.

In the course of the pre-trial proceedings, Sackett filed two motions for involuntary dismissal. Sackett's accompanying affidavits alleged essentially that Midgett was a member of the Production Workers Union of Chicago and Vicinity, Local 707, during his employment with Sackett and at the time of his discharge. Union members were protected by a collective bargaining agreement containing specific grievance procedures regarding discharge other than for "cause." Sackett maintained that Midgett was bound to pursue the administrative remedies provided by the collective bargaining agreement. Sackett moved to dismiss Midgett's claim sounding in tort for failure to state a cause of action. Midgett filed cross-motions in opposition to the motions to dismiss with affidavits generally denying Sackett's assertions and alleging that because the Union and Sackett were in collusion, the Union had not allowed him to file a grievance for his discharge. The trial court granted Sackett's motion to dismiss. The court stated that since it found that Midgett was a member of a union protected by a collective bargaining agreement and not an employee at will, he had no right to bring a cause of action for retaliatory discharge. Midgett appeals.

The primary issue before this court is whether an employee who is a union member and protected by a collective bargaining agreement has a cause of action in tort for retaliatory discharge.

A recent decision of this court, Wyatt v. Jewel Companies, Inc. (1982), 108 Ill.App.3d 840, 64 Ill.Dec. 388, 439 N.E.2d 1053, leave to appeal denied, 92 Ill.2d 573, addressed this issue. As in the case at bar, the plaintiff in that case, Wyatt, was a union member who brought suit against a former employer for retaliatory discharge, following the filing of a workers' compensation claim. The suit was dismissed for failure to state a cause of action. This court reversed the decision of the trial court, holding that a union member, such as Wyatt, was entitled to sue in tort for retaliatory discharge regardless of the existence of contractual remedies pursuant to a collective bargaining agreement. In reaching that decision this court emphasized the important public policy embodied in the Illinois Workers' Compensation Act and the need to protect the workers who invoke that policy, citing Kelsay v. Motorola (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353.

In Kelsay, the Illinois Supreme Court recognized a cause of action for retaliatory discharge of an employee at will who filed a workers' compensation claim. The court held that the cause of action arose separately from any action for breach of contract. Additionally, the court held that punitive damages might be awarded for such a discharge occurring after December 1978. This decision was based upon the strong public policy favoring the protection of rights stemming from the Workers' Compensation Act. (Ill.Rev.Stat.1979, ch. 48, par. 138.1 et seq.) In Wyatt v. Jewel Companies, Inc., 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.

We reject defendants' contention that such a determination tends to undermine the federal labor law policy favoring the arbitration of labor disputes covered by a collective bargaining agreement, as expressed in United...