Ritzheimer v. Insurance Counselors, Inc.

• Citation: 527 N.E.2d 1281,173 Ill.App.3d 953,123 Ill.Dec. 506
• Decision Date: 08 August 1988
• Docket Number: No. 5-87-0593,5-87-0593
• Court: United States Appellate Court of Illinois
• Parties: , 123 Ill.Dec. 506 Janelle RITZHEIMER, Plaintiff-Appellant, v. INSURANCE COUNSELORS, INC., and Paul Roesch, Defendants-Appellees.

Page 1281

527 N.E.2d 1281

173 Ill.App.3d 953, 123 Ill.Dec. 506

Janelle RITZHEIMER, Plaintiff-Appellant, v. INSURANCE COUNSELORS, INC., and Paul Roesch, Defendants-Appellees.

No. 5-87-0593.

Appellate Court of Illinois Fifth District.

Aug. 8, 1988.

Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville (James E. DeFranco, Karen E. Mason, of counsel), for plaintiff-appellant.

Robert J. Hillebrand, Timothy C. Stubblefield, Hillebrand & Stubblefield, P.C., Belleville, for defendants-appellees.

Presiding Justice HARRISON delivered the opinion of the court:

Plaintiff, Janelle Ritzheimer, filed an action in the circuit court of St. Clair County to recover damages for injuries she sustained when she was fired from her job after informing her employer that she had become pregnant. Plaintiff's complaint contained two counts. Count I asserted a cause of action against defendant Insurance Counselors, Inc., her employer, for inter alia, deprivation of her right to be free from discrimination on the basis of sex as guaranteed by article I, section 17 of the Illinois Constitution of 1970. Count II alleged intentional infliction of emotional distress by defendant Paul Roesch, her supervisor. On a motion filed by defendants, plaintiff's complaint was dismissed with prejudice. The basis for the circuit court's order of dismissal was that plaintiff's claims were barred by the Illinois Human Rights Act (Ill.Rev.Stat.1985, ch. 68, par. 1-101 et seq.). The court reached this conclusion even though, as we shall discuss, plaintiff and her employer were not subject to the provisions of that statute. Plaintiff now appeals. We reverse and remand.

In reviewing the propriety of an order granting a motion to dismiss, all well-pleaded facts in the complaint must be taken as true. (Longust v. Peabody Coal Company (1986), 151 Ill.App.3d 754, 757, 104 Ill.Dec. 436, 438, 502 N.E.2d 1096, 1098.) Count I of the complaint at issue here alleged that plaintiff was employed by defendant Insurance Counselors, Inc., a corporation which maintained its principal place of business in Belleville, Illinois. On or about July 14, 1986, plaintiff advised "defendant's employees, officers, or agents" that she was pregnant. Two days later, on July 16, 1986, defendant Paul Roesch, her supervisor, fired plaintiff from her job. According to the complaint, Roesch was, at the time, an "agent, officer, and employee" of defendant Insurance Counselors, Inc., and was "acting in the scope of his duties and on behalf of [defendant Insurance Counselors, Inc.]" when he terminated plaintiff. The complaint further indicated that plaintiff was terminated for no reason other than her pregnancy.

Although count I seems to be phrased in terms of an action for retaliatory discharge, plaintiff asserts that what she was actually attempting to do in that count was to assert a direct cause of action for deprivation of her rights under the Illinois Constitution of 1970. In particular, plaintiff asserts that her termination violated article I, section 17 of the 1970 Illinois Constitution, which provides:

"All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property.

These rights are enforceable without action by the General Assembly, but the General Assembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation."

Count I alleges that plaintiff's termination also violated sections 1, 2, and 18 of article I of the Illinois Constitution of 1970, but plaintiff does not purport to rely on those provisions on this appeal.

Plaintiff alleges in count I that as a result of her termination in violation of her constitutional rights, she has suffered damages "through her inability to provide for her family, emotional suffering, lost wages and other damages." For this, she seeks compensation in the amount of $10,000. Plaintiff also claims that in terminating her from her job, defendant Insurance Counselors acted willfully, wantonly and maliciously and that she is therefore entitled to punitive damages as well.

In count II of her complaint, plaintiff alleges that defendant Roesch was "an officer and employee of defendant Insurance Counselors, Inc.," and that he learned of plaintiff's pregnancy on July 14, 1986. Thereafter, he allegedly "engaged in an outrageous course of conduct to abuse, demean, and humiliate plaintiff for the purpose of causing her emotional distress." Plaintiff asserts that Roesch's conduct was "willful, wanton, and malicious," and that as a direct and proximate result of that conduct, she has suffered "severe emotional distress." As in count I, plaintiff seeks compensatory damages of $10,000, plus an award of punitive damages.

Plaintiff's complaint was filed on December 29, 1986. Defendants were personally served less than two weeks later, on January 9, 1987. Plaintiff then waited for a response. Nothing happened. Three months passed without an appearance or pleading being filed by either of the defendants. Accordingly, on April 9, 1987, plaintiff moved for entry of a default judgment pursuant to section 2-1301 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1301). The following day, defendants filed a motion to dismiss plaintiff's complaint.

As grounds for their motion to dismiss, defendants argued that the gist of counts I and II was simply that plaintiff had been wrongfully terminated from her job based on sexual discrimination. Under defendants' analysis, the exclusive remedy provided for such claims is set forth in the Illinois Human Rights Act (Ill.Rev.Stat.1985, ch. 68, par. 1-101 et seq.). Accordingly, defendants argued that plaintiff was precluded from bringing an action in circuit court directly under the State constitution or common law. Defendants advanced this argument even though, as stipulated by the parties, defendant Insurance Counselors had fewer than 15 full-time employees, and the Illinois Human Rights Commission had therefore refused to entertain plaintiff's grievances.

Following a hearing, the circuit court denied plaintiff's motion for a default judgment and granted defendants' motion to dismiss. In so doing, the court agreed with defendants' characterization of plaintiff's counts as setting forth a claim for unlawful sexual discrimination. The court further agreed that the Illinois Human Rights Act (Ill.Rev.Stat.1985, ch. 68, par. 1-101 et seq.) provided the sole remedy for such discrimination. Invoking section 8-111(C) of the Act, (Ill.Rev.Stat.1985, ch. 68, par. 8-111(C)), which provides that "[e]xcept as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act," the court apparently reasoned that it was therefore barred from considering plaintiff's claims. While not expressly stated in the circuit court's order of dismissal, we regard that order as having been entered pursuant to section 2-619(a)(1) of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-619(a)(1)), which provides for the involuntary dismissal of a complaint on defendant's motion where the court lacks subject matter jurisdiction. Plaintiff's request that the circuit court reconsider its order was denied, and she has appealed.

As we have indicated, count I of plaintiff's complaint asserts a direct cause of action against defendant Insurance Counselors under article I, section 17 of the Illinois Constitution of 1970, which guarantees to all persons "the right to be free from discrimination on the basis * * * of sex in the hiring and promotion practices of any employer * * *." There was no dispute at the trial level that to terminate a woman because she is pregnant constitutes "discrimination on the basis of * * * sex." (See Florsheim Shoe Company v. Illinois Fair Employment Practices Commission (1981), 99 Ill.App.3d 868, 873, 55 Ill.Dec. 46, 50, 425 N.E.2d 1219, 1223.) Nor was there any dispute that the reference to "hiring and promotion practices" in article I, section 17 includes, as in this case, an employer's decision to fire someone.

Although not raised as an issue on appeal, we must acknowledge that in Thakkar v. Wilson Enterprises, Inc. (1983), 120 Ill.App.3d 878, 883-84, 76 Ill.Dec. 331, 335, 458 N.E.2d 985, 989, the Appellate Court, First District, did hold that the constitutional prohibition against discrimination in hiring and promotion practices does not include termination and discharge. (See also Yount v. Hesston Corporation (1984), 124 Ill.App.3d 943, 949, 80 Ill.Dec. 231, 236, 464 N.E.2d 1214, 1219 (following Thakkar ).) While a panel of this court has held that the phrase "hiring and promotion practices" as used in article I, section 17 does not include all employment practices (see Briggs v. Lawrenceville Industries, Inc. (1985), 136 Ill.App.3d 1073, 1074, 91 Ill.Dec. 788, 789, 484 N.E.2d 347, 348, citing Greenholdt v. Illinois Bell Telephone Company (1982), 107 Ill.App.3d 748, 752, 63 Ill.Dec. 507, 510, 438 N.E.2d 245, 248), we disagree with Thakkar and hold that sexually discriminatory discharge and termination do fall within that constitutional prohibition. Our conclusion rests on several factors.

The first is the language of the constitutional provision itself. The meaning of a constitutional provision depends on the common understanding of the citizens who, by ratifying the constitution, gave it life. This understanding, however, is best determined by referring to the common meaning of the words used. (Kalodimos v. Village of Morton Grove (1984), 103 Ill.2d 483, 492-93, 83 Ill.Dec. 308, 312, 470 N.E.2d 266, 270.) In Thakkar, the court seems to have understood "hiring practices" to mean simply practices related to the initial process of hiring a worker. The word "hire," however, has...