Welsh v. Commonwealth Edison Co.

• Decision Date: 17 June 1999
• Docket Number: No. 1-98-2212.,1-98-2212.
• Citation: 713 N.E.2d 679,239 Ill.Dec. 148,306 Ill. App.3d 148
• Parties: Steve WELSH, Gerald Evans, Lee Danson, Michael Johnson, Mike Yusten, and Kelly Fondrliak, Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

713 N.E.2d 679

306 Ill. App.3d 148

239 Ill.Dec. 148

Steve WELSH, Gerald Evans, Lee Danson, Michael Johnson, Mike Yusten, and Kelly Fondrliak, Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.

No. 1-98-2212.

Appellate Court of Illinois, First District, Fourth Division.

June 17, 1999.

Hunt & Associates, Chicago (Keith L. Hunt & Katherine A. Rodosky, of counsel), for Appellants.

Sidney & Austin, Chicago (Brian J. Gold, Scott E. Gross and Melissa E. Lamfalusi, of counsel), Glenn D. Newman, Associate General Counsel for Labor, Litigation & Claims, for Appellee.

Justice HOFFMAN delivered the opinion of the court:

The plaintiffs, Steve Welsh, Gerald Evans, Lee Danson, Michael Johnson, Mike Yusten, and Kelly Fondrliak, filed the instant action seeking recovery against their employer, Commonwealth Edison Company, on theories of "Retaliatory Demotion," "Retaliatory Constructive Discharge," and "Intentional Infliction of Emotional Distress." Commonwealth Edison moved to dismiss the action pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1996)), alleging that the plaintiffs' complaint failed to state causes of action upon which relief could be granted. The trial court granted the motion and dismissed the action. The plaintiffs have appealed, and for the reasons which follow, we affirm.

The plaintiffs filed an eighteen-count complaint against Commonwealth Edison alleging that they were demoted after having made complaints concerning safety issues and statutory violations at Commonwealth Edison's nuclear power station in Zion, Illinois. In their complaint, the plaintiffs allege that they each complained to Commonwealth Edison's management and the Nuclear Regulatory Commission concerning conditions at the Zion facility and that five of them testified before the Nuclear Regulatory Commission in support of their complaints. According to the complaint, each of the plaintiffs was thereafter transferred to another facility and demoted, and each suffered a loss of pay and "a significant deterioration in the terms, conditions, privileges and environment of his or her employment. Specifically, the complaint alleges that three of the plaintiffs were demoted from the position of nuclear station operator to underground helper, one was demoted from equipment operator to coal handler, another was demoted from equipment attendant to underground helper, and the sixth was demoted from nuclear fuel handler to coal handler. Those demoted to underground handler were assigned "demeaning" and "humiliating" tasks such as manually cleaning manholes "infested with bacteria, human waste, and other disgusting matter" and denied permission to use equipment specifically designed for such purposes. Those assigned to duties as a coal handler allege that they were assigned unspecified "demeaning" and "humiliating" tasks. The plaintiffs charge that they were reassigned and demoted in retaliation for having complained about conditions and procedures at the Zion facility. The complaint filed in this case sets forth three counts in favor of each plaintiff; one for "Retaliatory Demotion," one for "Retaliatory Constructive Discharge," and one for "Intentional Infliction of Emotional Distress."

Commonwealth Edison filed a section 2-615 motion to dismiss all counts of the plaintiffs' complaint. In its motion, Commonwealth Edison argued, inter alia, that Illinois does not recognize causes of action for retaliatory demotion or constructive retaliatory discharge. It further argued that, as to the claims for intentional infliction of emotional distress, the plaintiffs had failed to plead any facts in support of the conclusion that its actions were "extreme and outrageous" or that its alleged conduct caused them to suffer "severe emotional distress." The trial court granted the motion, thereby dismissing all of the plaintiffs' claims, and this appeal followed.

As the complaint in issue was dismissed in response to a section 2-615 motion, the only question before this court is whether the dismissed counts state causes of action. Burdinie v. Village of Glendale Heights, 139 Ill.2d 501, 505, 152 Ill.Dec. 121, 565 N.E.2d 654 (1990); Janes v. First Federal Savings & Loan Ass'n, 57 Ill.2d 398, 406, 312 N.E.2d 605 (1974). The issue is one of law, and our review is de novo. Vernon v. Schuster, 179 Ill.2d 338, 344, 228 Ill.Dec. 195, 688 N.E.2d 1172 (1997)

.

In reviewing a dismissal under section 2-615 of the Code, we must take all well-pleaded facts in the complaint as true and draw all reasonable inferences from those facts which are favorable to the pleader. Ziemba v. Mierzwa, 142 Ill.2d 42, 47, 153 Ill.Dec. 259, 566 N.E.2d 1365 (1991). However, we will not take conclusions of law or fact contained within the challenged pleading as true unless they are supported by specific factual allegations. Ziemba, 142 Ill.2d at 47, 153 Ill.Dec. 259, 566 N.E.2d 1365. A cause of action should not be dismissed on the pleadings unless it is apparent that no set of facts can be proven which would entitle the plaintiff to recover. Illinois Graphics Co. v. Nickum, 159 Ill.2d 469, 488, 203 Ill.Dec. 463, 639 N.E.2d 1282 (1994).

As a general rule, Illinois follows the common law doctrine that at-will employment is terminable at any time for any or no cause. Palmateer v. International Harvester Co., 85 Ill.2d 124, 128-30, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). In 1978, our supreme court recognized a cause of action for retaliatory discharge and, thereby, created a limited exception to an employer's ability to freely discharge an at-will employee. See Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978). In order to state a valid claim for retaliatory discharge, a plaintiff must allege that he or she was discharged from employment in retaliation for his or her activities and that the discharge violates a clear mandate of public policy. Hinthorn v. Roland's of Bloomington, Inc., 119 Ill.2d 526, 529, 116 Ill.Dec. 694,519 N.E.2d 909 (1988).

As the plaintiffs correctly argue, the protection of public policy is the foundation of a retaliatory discharge claim. Palmateer, 85 Ill.2d at 133, 52 Ill.Dec. 13, 421 N.E.2d 876. Although not subject to precise definition, "public policy concerns what is right and just and what affects the citizens of the State collectively." Palmateer, 85 Ill.2d at 130, 52 Ill.Dec. 13, 421 N.E.2d 876. Our supreme court has already held that the "protection of the lives and property of citizens from the hazards of radioactive material is as important and fundamental as protecting them from crimes of violence, and * * * Congress has effectively declared a clearly mandated public policy to that effect." Wheeler v. Caterpillar Tractor Co., 108 Ill.2d 502, 511, 92 Ill.Dec. 561, 485 N.E.2d 372 (1985).

The plaintiffs' complaint alleges that they were transferred and demoted in retaliation for having registered complaints concerning issues of safety at the Zion facility and Commonwealth Edison's possible violations of the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq. (1994)) and regulations issued by the Nuclear Regulatory Commission. Consequently, we have little difficulty in finding that, if these allegations are true, Commonwealth Edison's retaliation against the plaintiffs evinces behavior which is inconsistent with the State's public policy. Nevertheless, the question remains as to whether, in the absence of an actual discharge, the plaintiffs have stated cognizable causes of action.

The plaintiffs candidly concede that our supreme court refused to recognize the tort of retaliatory demotion in Zimmerman v. Buchheit of Sparta, Inc., 164 Ill.2d 29, 206 Ill.Dec. 625, 645 N.E.2d 877 (1994), but argue that Zimmerman, a plurality opinion, is readily distinguishable from the facts present in this case. They also point out that four of the justices participating in the Zimmerman decision found the recognition of a cause of action for retaliatory demotion to be the logical extension of the tort of retaliatory discharge. Zimmerman, 164 Ill.2d at 46, 206 Ill.Dec. 625, 645 N.E.2d 877 (Bilandic, C.J., concurring, joined by Heiple, J.), 164 Ill.2d at 52, 206 Ill.Dec. 625, 645 N.E.2d 877 (Harrison, J., dissenting, joined by Nickels, J.).

In Zimmerman, the plurality noted that "the element of discharge in violation of a clear public policy is essential to the tort created * * * in Kelsay" and declined the "plaintiff's request to extrapolate from the rationale of Kelsay a cause of action predicated on retaliatory demotion." Zimmerman, 164 Ill.2d at 38-39, 206 Ill.Dec. 625, 645 N.E.2d 877. In a separate concurring opinion, two additional justices also declined to recognize a cause of action for retaliatory demotion, not because they believed that such an action would be inconsistent with the rationale adopted in Kelsay, but because they were of a belief that the recognition of a cause of action for retaliatory discharge was in itself an "unwarranted intrusion into the legislative arena". Zimmerman, 164 Ill.2d at 46-48, 206 Ill.Dec. 625, 645 N.E.2d 877 (Bilandic, C.J., concurring, joined by Heiple, J.).

The logic of the proposition that the recognition of a cause of action for retaliatory demotion is the necessary extension of the tort of retaliatory discharge is difficult to deny. As the concurrence in Zimmerman observes:

"[I]f we do not have a cause of action for retaliatory demotion, we, in effect, will not have a cause of action for retaliatory discharge. We have invited those who wish to discharge in retaliation to simply demote in retaliation, and thereby escape the effect of the law." Zimmerman, 164 Ill.2d at 46, 206 Ill.Dec. 625, 645 N.E.2d 877 (Bilandic, C.J., concurring, joined by Heiple, J.).

The fact remains, however, that five justices of our supreme court in Zimmerman refused to recognize a cause of action for retaliatory demotion. Nevertheless, the plaintiffs urge us to...