Richardson v. Illinois Bell Telephone Co.

• Decision Date: 26 June 1987
• Docket Number: No. 2-86-1092,2-86-1092
• Citation: 156 Ill.App.3d 1006,109 Ill.Dec. 513,510 N.E.2d 134
• Parties: , 109 Ill.Dec. 513, 128 L.R.R.M. (BNA) 2851, 3 IER Cases 1448 Richard C. RICHARDSON, Plaintiff-Appellant, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 134

510 N.E.2d 134

156 Ill.App.3d 1006, 109 Ill.Dec. 513,

128 L.R.R.M. (BNA) 2851,

3 IER Cases 1448

Richard C. RICHARDSON, Plaintiff-Appellant, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant-Appellee.

No. 2-86-1092.

Appellate Court of Illinois Second District.

June 26, 1987.

J. Timothy Loats, Aurora, for plaintiff-appellant.

Georgia J. Reithal, Atty. Ill. Bell, Edward A. Butts, G. Robert Guritz, Chicago, for defendant-appellee.

Justice NASH delivered the opinion of the court:

Plaintiff, Richard C. Richardson, brought this action against defendant, Illinois Bell Telephone Company, to recover damages for a claimed retaliatory discharge. The trial court granted defendant's motion to dismiss on the ground that plaintiff's cause of action was preempted by section 301 of the Labor Management Relation Act (29 U.S.C. sec. 185(a) (1982)). Plaintiff appeals, contending that preemption is not warranted under the rationale of Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill.2d 1, 104 Ill.Dec. 751, 503 N.E.2d 308, cert. denied, 483 U.S. 1032, 107 S.Ct. 3248, 97 L.Ed.2d 779 (1987).

Defendant employed plaintiff as a service technician until September 21, 1981, when plaintiff injured himself in the course of his employment and required extensive medical treatment. Defendant provided benefits to plaintiff pursuant to the Workers' Compensation Act (Act) (Ill.Rev.Stat.1981, ch. 48, par. 138.1 et seq.) and he was treated by Illinois Bell doctors, who kept him off work until June 12, 1982. During the time he was off, plaintiff continually questioned his supervisor, Mr. Barkei, whether any desk jobs existed which plaintiff could fill. Barkei said only that he was "checking into it." In June 1982, the doctors cleared plaintiff to return to work, but only for limited duty due to his continuing back problems. Plaintiff reported to work on June 15, 1982, but was immediately discharged. The reason given by defendant was that plaintiff had allegedly stolen company property. While employed by defendant, plaintiff was a member of a union, the International Brotherhood of Electrical Workers, and was covered by a collective bargaining agreement between the union and defendant which provided in part that a union member could not be discharged except for just cause.

On January 24, 1984, plaintiff filed his complaint in this action in which he alleged that defendant had terminated his employment, "and did further refuse to rehire or recall to active service, the Plaintiff, because of the exercise of his rights under the Workmans [sic ] Compensation Act." The complaint sought recovery of lost wages plus punitive damages in unspecified amounts.

Defendant filed a motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-619) on the grounds that plaintiff's cause of action was preempted by section 301 of the Labor Management Relation Act. Following argument, the trial court granted the motion, relying on Mitchell v. Pepsi Cola Bottlers, Inc. (7th Cir.1985), 772 F.2d 342, cert. denied (1986), 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575, and plaintiff appeals.

Subsequent to the filing of the notice of appeal in this case, the Illinois Supreme Court announced its decision in Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill.2d 1, 104 Ill.Dec. 751, 503 N.E.2d 308, in which the court held that the Illinois tort of retaliatory discharge is based on rights which are "firmly rooted in the clearly mandated public policy of this State" and, therefore, the cause of action is not preempted by Federal labor law. (115 Ill.2d 1, 9-10, 104 Ill.Dec. 751, 503 N.E.2d 308.) Plaintiff contends that Gonzalez controls this case and that the trial court's order of dismissal must be reversed. Defendant argues that plaintiff's complaint does not really allege retaliatory discharge, but merely contests the validity of defendant's proffered reason for the firing, theft from the company. Defendant asserts that since such allegations can be determined only by reference to the collective bargaining agreement, the cause of action is preempted by section 301.

The Illinois Supreme Court determined that a cause of action exists for a retaliatory discharge for exercising rights under the Workers' Compensation Act in Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 181, 23 Ill.Dec. 559, 384 N.E.2d 353. In Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill.2d 143, 149, 85 Ill.Dec. 475, 473 N.E.2d 1280, cert. denied (1985), 472 U.S. 1032, 105 S.Ct. 3513, 87 L.Ed.2d 642, the court held that the cause of action applied as well to unionized employees covered by a collective-bargaining agreement. Subsequently, in Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 210, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206, 215, the United States Supreme Court held that the Wisconsin tort of bad faith handling of an insurance claim was preempted by section 301, finding that, under Wisconsin law, the cause of action depended upon interpretation of the "just cause" provision of a collective-bargaining agreement. The court noted that not every cause of action which tangentially involves the terms of a collective-bargaining agreement is necessarily preempted by section 301. Rather, State rules which establish rights and obligations independent of a labor contract are not preempted. (471 U.S. 202, 210-12, 105 S.Ct. 1904, 1911-12, 85 L.Ed.2d 206, 215-16.) Following Allis-Chalmers, the Illinois Supreme Court held in Bartley v. University Asphalt Co. (1986), 111 Ill.2d 318, 333, 95 Ill.Dec. 503, 489 N.E.2d 1367, that plaintiff's cause of action for civil conspiracy against his former employer and his union was preempted. In Gonzalez, however, the court found that the tort of retaliatory discharge is designed to protect rights derived from the public policy of this State and exists separate and apart from any rights created by a labor contract. Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill.2d 1, 9-10, 104 Ill.Dec. 751, 503 N.E.2d 308.

The issue in this appeal, then, is whether plaintiff's complaint states a cause of action for retaliatory discharge; if so, it should not have been dismissed. Defendant supported its motion to dismiss with excerpts from a deposition given by plaintiff in which he stated that the reason given for his termination was theft; that no one ever gave him a different reason; that he had never mentioned to anyone from the defendant company that he intended to file a workers' compensation claim and, in fact, he had never contemplated doing so until after his discharge; and that, following his discharge, he filed a grievance with the union but did not pursue it on the advice of his union steward. From these facts, defendant asks us to infer that defendant could not have terminated plaintiff for exercising his rights under the Workers' Compensation Act since he had not formed the intention to do so at that time. Defendant concludes that the real basis for plaintiff's complaint must be to test the validity of his discharge for theft and is preempted by section 301.

In determining whether a complaint alleges a claim for retaliatory discharge, the employer's proffered reason for the termination is not controlling. Rather, in deciding a motion to dismiss, all well-pleaded facts, as well as reasonable inferences therefrom, are taken as true. The complaint must be taken as a whole and liberally construed with...