Milton v. Illinois Bell Tel. Co.

• Decision Date: 09 October 1981
• Docket Number: No. 80-1324,80-1324
• Citation: 427 N.E.2d 829,101 Ill.App.3d 75,56 Ill.Dec. 497
• Parties: , 56 Ill.Dec. 497, 115 L.R.R.M. (BNA) 4428 Kenneth W. MILTON, Plaintiff-Appellant, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 829

427 N.E.2d 829

101 Ill.App.3d 75, 56 Ill.Dec. 497,

115 L.R.R.M. (BNA) 4428

Kenneth W. MILTON, Plaintiff-Appellant, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant-Appellee.

No. 80-1324.

Appellate Court of Illinois, First District, Fifth Division.

Oct. 9, 1981.

[56 Ill.Dec. 498] Rose M. Urban, Robert A. Handelsman, Robbins, Coe, Rubinstein & Shafran, Ltd., Chicago, for plaintiff-appellant

L. Bow Pritchett, Thomas H. W. Sawyer, Benjamin Ghess, Chicago, for defendant-appellee.

LORENZ, Justice:

Plaintiff, Kenneth W. Milton, filed a complaint which alleges that his employer, Illinois Bell Telephone Company, intentionally caused him to suffer severe emotional distress. The telephone company's motion to Plaintiff is employed by Defendant as a telephone installer. One of his job duties is to complete written reports on the time required, material used, and tasks performed for each installation or repair job. Defendant uses these work reports in billing customers and in compiling reports of corporate expenses for the Illinois Commerce Commission.

[56 Ill.Dec. 499] dismiss the cause of action was granted by the trial court on the grounds that the alleged conduct was, as a matter of law, not outrageous enough to be actionable. The issues presented by this appeal are: (1) whether the complaint alleges conduct which is outrageous enough to meet the pleading requirements for the tort of intentional infliction of severe emotional distress; (2) whether plaintiff's sole remedy is under either the Workmen's Compensation Act (Ill.Rev.Stat.1979, ch. 48, par. 138.1 et seq.) or the Workers' Occupational Diseases Act (Ill.Rev.Stat.1979, ch. 48, par. 172.36 et seq.); and (3) whether plaintiff is required to plead exhaustion of the remedies provided by a collective bargaining agreement. The following allegations are taken from the complaint.

Throughout his employment with defendant, plaintiff's foreman and other superiors have allegedly made frequent demands that he falsify these reports. According to the complaint, defendant's officers, executives, and managers know that it is a widespread practice for defendant's foremen to demand that installers falsify work reports. Allegedly, the unrealistic performance goals set by the company, and the failure to act to prevent widespread demands by foremen for falsification of work reports, show that it is defendant's corporate policy to permit, allow, and encourage foremen and others to demand that installers falsify work reports.

Plaintiff claims he has consistently refused to falsify work reports and that, in retaliation, his foreman and other superiors have intentionally harrassed and coerced him through use of the following practices:

(1) Giving plaintiff assignments which were geographically and environmentally more undesirable than the assignments given to installers who cooperated in falsifying work reports;

(2) Giving plaintiff assignments where he had a minimal opportunity for obtaining overtime while giving "more cooperative" installers assignments where there was a high probability of obtaining overtime;

(3) Criticizing plaintiff for complying with company rules and then punishing him for not complying with those rules;

(4) Setting widely unrealistic time estimates for tasks assigned to plaintiff and bouncing him from job to job to wear him out physically and mentally;

(5) Keeping an extraordinarily close watch on plaintiff's work and following him from job to job;

(6) Misleading customers about plaintiff's capability, efficiency, and integrity, plus encouraging customers to report complaints about plaintiff;

(7) Arbitrarily denying plaintiff "distress leave" and "reserve week leave";

(8) Refusing to accept accurate work reports from plaintiff and adding false information to reports he had already completed.

Such retaliation is allegedly a widespread practice used by defendant's foremen and other employees on installers who refuse to falsify work reports. Again it is alleged that these practices constitute a corporate policy which is known by, permitted, allowed, and encouraged by defendant's officers, executives, and managers. The complaint concludes by stating that defendant's conduct has caused plaintiff great mental distress, anguish, and nervous tension requiring hospitalization and medical care.

OPINION

I.

To state a cause of action for the tort of intentional infliction of severe emotional distress, plaintiff must allege facts which show that defendant intentionally or recklessly caused plaintiff to suffer severe emotional distress as the result of extremely outrageous conduct. (Public Finance Corp. v. Davis (1977), 66 Ill.2d 85, 4 Ill.Dec 652, 360 N.E.2d 765.) "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Restatement (Second) of Torts, Sec. 46, Comment d; accord, Public Finance Corp. v. Davis, ibid at 90, 4 Ill.Dec. 652, 360 N.E.2d 765.

We agree that, under the holding of Public Finance, plaintiff's allegations of retaliatory practices fail to meet the strict pleading requirements which the Supreme Court indicated should be used to test the sufficiency of a complaint for intentional infliction of severe emotional distress in debt-collection cases. Separately considered, each of the individual allegations of retaliatory conduct either (a) lack sufficient specificity to permit a court to conclude that they fulfill the outrageousness requirement, or (b) do not refer to action which is, by itself, outrageous enough to be actionable in tort.

A defendant's alleged malice or "evil motive" is also not, by itself, sufficient to show the requisite degree of outrageousness. (Public Finance, ibid.) It is therefore unimportant that defendant is, in essence, accused of some "evil scheme" to defraud the public and mislead the Commerce Commission. However, this does not mean that we can ignore the allegations that repeated demands were made on plaintiff to falsify work reports and that a course of retaliation was inflicted on him for refusing to give in to those demands.

Whatever the claimed motives for the demands and retaliation alleged in the complaint, the question for us is whether it could reasonably be considered extremely outrageous for an employer to intentionally subject an employee to such conduct.

As Dean Prosser pointed out, "The extreme and outrageous nature of the conduct may arise not so much from what is done as from abuse by the defendant of some relation or position which gives him actual or apparent power to damage the plaintiff's interests. The result is something very like extortion." (Prosser on Torts, 4th Ed., p. 56; accord, Restatement (Second) of Torts, § 46, Comment e, and Public Finance, supra, at 90, 4 Ill.Dec. 652, 360 N.E.2d 765.) The Supreme Court recently acknowledged that "relatively immobile workers who often have no other place to market their skills," do not stand on equal footing with the large corporations which employ them. (Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 129, 52 Ill.Dec. 13, 421 N.E.2d 876.) It is the alleged abuse of power by a large corporation over one of its front line employees which aggravates the outrageousness of the conduct alleged in this case.

We find Public Finance clearly distinguishable because the defendant in that case was merely exercising legal rights which could not be asserted without causing a certain amount of embarrassment and distress. Public Finance was a debt-collection case in which the Supreme Court evaluated the allegations in light of the finance company's lawful interest in attempting to collect on a defaulted loan. Quoting from the Restatement (Second), Sec. 46, Comment g, the Supreme Court held that the proper rule in such cases is that, "the actor is not liable 'where he has done no more than to insist upon his legal rights in a permissible way, even though he is aware that such insistence is certain to cause emotional distress.' A creditor must be given some latitude to pursue reasonable methods of collecting debts even though such methods may result in some inconvenience, embarrassment or annoyance to the debtor." Public Finance, supra, at 92, 4 Ill.Dec. 652, 360 N.E.2d 765.

In contrast with Public Finance, the complaint in this case does not show a defendant which was only insisting on exercising its legal rights. Agents of the defendant in this case allegedly demanded that plaintiff falsify work reports which were used in billing customers. We note that a corporation can be prosecuted for a misdemeanor if (1) the offense was committed by an agent of the corporation (that is, "any director, officer, servant, employee, or other person who is authorized to act in behalf of the corporation") and (2) the "agent of the corporation performs the conduct which is an element of the offense while acting within the scope of his office or employment and in behalf of the corporation * * * " (Criminal Code of 1961, § 5-4(a) and (c); Ill.Rev.Stat.1979, ch. 38, par. 5-4(a) and (c).) Therefore, if a corporation's agents knowingly falsified work reports and the corporation used such work reports to overcharge customers, the corporation could be prosecuted for misdemeanor theft. Criminal Code of 1961, §...