Wieseman v. Kienstra, Inc.

• Decision Date: 04 December 1992
• Docket Number: No. 5-91-0780,5-91-0780
• Parties: , 178 Ill.Dec. 603, 126 Lab.Cas. P 57,507, 3 NDLR P 249 Thomas E. WIESEMAN, Plaintiff-Appellant, v. KIENSTRA, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1126

604 N.E.2d 1126

237 Ill.App.3d 721, 178 Ill.Dec. 603,

126 Lab.Cas. P 57,507,

3 NDLR P 249

Thomas E. WIESEMAN, Plaintiff-Appellant, v. KIENSTRA, INC., Defendant-Appellee.

No. 5-91-0780.

Appellate Court of Illinois Fifth District.

Dec. 4, 1992.

[178 Ill.Dec. 604] William J. Meacham, Smith, McGrady & Meacham, Ltd., East Alton, for plaintiff-appellant.

Thompson & Mitchell, Belleville (Allan M. Goodloe, Jr. and William A. Schmitt of counsel), for defendant-appellee.

Justice WILLIAM A. LEWIS delivered the opinion of the court:

Plaintiff, Thomas E. Wieseman, appeals from a judgment of the Circuit Court of Madison County, which dismissed the plaintiff's complaint pursuant to section 2-615(b) of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-615(b)) for failure to state a cause of action. The sole issue raised on appeal is whether the court erred in granting the defendant's motion to dismiss. For the reasons set forth below, we affirm.

A complaint which fails to state a cause of action because of factual or legal insufficiency must be dismissed. (Robbins v. City of Madison (1990), 193 Ill.App.3d 379, 140 Ill.Dec. 296, 549 N.E.2d 947.) A legally sufficient complaint sets forth a legally recognized claim upon which the plaintiff is entitled to recover, while a factually sufficient complaint must plead sufficient facts essential to the alleged cause of action. Robbins, 193 Ill.App.3d 379, 140 Ill.Dec. 296, 549 N.E.2d 947.

In considering a motion to dismiss, a reviewing court must accept as true all well-pleaded facts alleged in the complaint and all reasonable inferences that can be drawn from those facts. (Robbins, 193 Ill.App.3d 379, 140 Ill.Dec. 296, 549 N.E.2d 947.) If it clearly appears that no set of facts can be alleged and proven which would entitle the plaintiff to relief, then a complaint has been properly dismissed. (Robbins, 193 Ill.App.3d 379, 140 Ill.Dec. 296, 549 N.E.2d 947.) If a complaint is stricken and a plaintiff fails to seek leave to amend, it is presumed the plaintiff elects to stand on the stricken complaint, and, if dismissed, the cause of action must stand or fall upon the contents of the complaint alone. Robbins, 193 Ill.App.3d 379, 140 Ill.Dec. 296, 549 N.E.2d 947.

Here, the plaintiff's complaint was dismissed and he did not seek to amend, so the viability of the plaintiff's complaint turns solely on the sufficiency of the allegations set forth in his complaint. In the plaintiff's complaint, he alleges that prior to April 19, 1991, he was employed by Klueter Brothers Concrete (Klueter); that just prior to that date, he was offered employment by the defendant; that he resigned from Klueter on April 19, 1991; that he reported to work at the offices of the defendant on April 22, 1991; that, on April 22, 1991, he punched a time clock, was given work orders, was issued safety equipment, and proceeded to perform his work duties; that also on that date, he underwent a physical examination by the defendant's physicians as required by the defendant; and that on April 23, 1991, when he reported to work, the defendant discharged him. The plaintiff also alleges in his complaint that the reason given for his discharge was "that it was believed by supervisory personnel of Kienstra, Inc. that Plaintiff at some future time might suffer a breakdown of the physical structure of his knee which may result in Plaintiff filing a claim for workers['] compensation pursuant to Illinois Rev.Stat.Chap. 48, Paragraph 138, et seq. [sic ]." The plaintiff further states in his complaint that his discharge was in direct contravention of the public policy of the State of Illinois. From these allegations, it is apparent the plaintiff sought relief under a cause of action of retaliatory discharge.

The tort of retaliatory discharge was first recognized as a cause of action in Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353. While the common law doctrine that an employer may discharge an at-will employee for any reason or for no reason is still the general rule in Illinois, the tort of retaliatory discharge has been held to be a limited and narrow exception to this general rule. (Fellhauer v. City of Geneva (1991), 142 Ill.2d 495, 154 Ill.Dec. 649, 568 N.E.2d 870; Thomas v. Zamberletti (1985), 134 Ill.App.3d 387, 89 Ill.Dec. 387, 480 N.E.2d 869.) Our supreme court recently reaffirmed this limited and narrow exception by saying "[s]imply put, 'Illinois allows employers to act on the basis of their employee's physical disabilities; it is only the request for benefits that state law puts off limits as a ground of decision', McEwen v. Delta Air Lines, Inc. (7th Cir.1990) 919 F.2d 58, 60." (Hartlein v. Illinois Power Company (1992), 151 Ill.2d 142, 176 Ill.Dec. 22, 30, 601 N.E.2d 720, 728), and "with regard to the fact of discharge, we decline to expand the tort to encompass a retaliatory discharge 'process'." (Hartlein v. Illinois Power Company (1992), 151 Ill.2d 142, 176 Ill.Dec. 22, 31, 601 N.E.2d 720, 729. To state a valid claim for retaliatory discharge, a plaintiff must show that he was (1) discharged; (2) in retaliation for his activities; and (3) that the discharge violated a clear mandate of public policy. (Hinthorn v. Roland's of Bloomington, Inc. (1988), 119 Ill.2d 526, 116 Ill.Dec. 694, 519 N.E.2d 909.) With these principles in mind, we now consider whether the plaintiff's complaint was sufficient to withstand a motion to dismiss.

The plaintiff contends that he was discharged "prior to having the occasion to seek medical attention for a job related injury," and that the defendant believed that the plaintiff's pre-existing condition of one of his knees would be aggravated by the work required of the plaintiff, and that "at some future date Plaintiff would be required to seek medical attention due to the breakdown of the Plaintiff's physical structure," resulting in the plaintiff filing a claim for workers' compensation. The plaintiff characterizes this discharge as a "preemptive strike" against him. The plaintiff asserts, therefore, that his discharge was violative of the public policy stated in the Workers' Compensation Act (Ill.Rev.Stat.1991, ch. 48, 138.1 et seq.) (the Act).

We find that the plaintiff's complaint fails to state sufficient facts to support two of the elements necessary to state a cause of action for retaliatory discharge; that the plaintiff was discharged for his activities, and that the discharge violates a clear mandate of public policy. In the plaintiff's complaint, he does not relate any activity he performed which provided the defendant with a retaliatory motive for his discharge. He does not state that he filed a workers' compensation claim against his former employer or against the defendant, or that he sustained a work-related injury with a former employer or with the defendant for which he sought medical treatment. We can not even be assured from reading the complaint that plaintiff's potential bad knees are not congenital. Without an activity, a retaliatory motive for the plaintiff's discharge cannot be found to exist.

Further, while the Workers' Compensation Act provides a strong public policy to insure the protection of workers covered by the Act, we find that this policy is not called into play under the circumstances present in this case. The Act is to provide payment of compensation and medical expenses for an employee injured at work. The Act does not apply to anticipated future injuries, and an employee's rights under the Act accrue only at such time when a work-related injury occurs. Since the plaintiff has not alleged he has sustained an injury at work, he has no rights he is foregoing under the Act, and the defendant's discharge of him has not violated any public policy. From the facts presented in the plaintiff's complaint, it can only be determined that the plaintiff was an at-will employee and that the defendant had the right to discharge him for any reason or for no reason whatsoever.

Finally, it would be poor public policy to force an employer to keep an employee at a job that ultimately might cause the breakdown of the physical structure of plaintiff's knees and who might be a danger to the public if his knee gave way while operating a truck. If we were to hold in this case that there had been a retaliatory discharge, we would in effect be discouraging employers from giving job seekers physical examinations for the purpose of determining whether the employees could perform their duties, because the employer is going to be held liable regardless of the results of the examination. We would also be encouraging employers to continue an employee in a job that the employer knew would ultimately result in an injury to the employee, because the employer is going to be held liable whether the employer keeps the employee or discharges him. An employer might opt for the least expensive out and that would be keeping the employee at the job and thereby getting some work out of him as opposed to discharging the employee, pay another person to do the employee's job, and suffer the costs of defending a suit and paying damages. In Hartlein, the supreme court held that it was not a retaliatory discharge to cause an employee injured at work to seek another job as part of his rehabilitation program. (Hartlein (1992), 151 Ill.2d 142, 176 Ill.Dec. 22, 601 N.E.2d 720). In this case the employer is causing the employee to seek a less strenuous job so that he might not have to undergo rehabilitation.

For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.

Affirmed.

HENRY LEWIS, J., concurring.

CHAPMAN, J., dissenting.

Justice CHAPMAN dissenting.

"If the hiring be general, without any particular time limited, the law construes it to be a hiring for a year; upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the...