Zientara v. Long Creek Tp., 4-90-0492

• Decision Date: 04 April 1991
• Docket Number: No. 4-90-0492,4-90-0492
• Citation: 569 N.E.2d 1299,211 Ill.App.3d 226,155 Ill.Dec. 688
• Parties: , 155 Ill.Dec. 688 Craig ZIENTARA, Plaintiff-Appellant, v. LONG CREEK TOWNSHIP, a unit of local government, Bob Robertson, Barb Banfield, Dale Workman, Danny Rutherford, David Johnson, and Jeff Yount, individually, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1299

569 N.E.2d 1299 211 Ill.App.3d 226, 155 Ill.Dec. 688 Craig ZIENTARA, Plaintiff-Appellant,
v.
LONG CREEK TOWNSHIP, a unit of local government, Bob
Robertson, Barb Banfield, Dale Workman, Danny
Rutherford, David Johnson, and Jeff
Yount, individually,
Defendants-Appellees. No. 4-90-0492. Appellate Court of Illinois,
Fourth District. April 4, 1991.

Page 1301

[211 Ill.App.3d 232] [155 Ill.Dec. 690] Leahy Law Offices, Springfield (Mary Lee Leahy, of counsel), for plaintiff-appellant.

Michael R. Cornyn, David E. Krchak, Thomas, Mamer & Haughey, Champaign, for defendants-appellees.

Justice SPITZ delivered the opinion of the court:

Plaintiff Craig Zientara appeals from a judgment entered against plaintiff and in favor of defendants Long Creek Township (Township), Bob Robertson, Barb Banfield, Dale Workman, Danny Rutherford, David Johnson, and Jeff Yount. During the jury trial conducted in the circuit court of Macon County, the trial judge directed a verdict at the close of plaintiff's evidence.

On appeal, plaintiff raises three issues. The first issue is whether the trial court improperly struck portions of counts I and II of plaintiff's complaint.

On August 3, 1987, plaintiff filed a three-count complaint against defendants. Count I alleged a cause of action for retaliatory discharge against the Township. Count II alleged civil rights violations against all the named defendants, while count III attempted to make an additional claim for damages against the township for civil rights violations. On January 4, 1988, plaintiff filed a first-amended complaint, also framed in three counts. On February 18, 1988, defendant moved to dismiss plaintiff's first-amended complaint.

Count I of plaintiff's first-amended complaint alleged as follows:

"1. Plaintiff, CRAIG ZIENTARA, is an adult resident of Macon County, State of Illinois.

2. Defendant, LONG CREEK TOWNSHIP, is a unit of local government established pursuant to the Constitution and statutes of the State of Illinois with its offices located in Macon County, State of Illinois.

3. Defendant operates a water department supplying water to various residents of the township.

4. At all times relevant hereto, Plaintiff enjoyed the rights set forth in Section 5 of Article I of the 1970 Illinois Constitution which reads:

"The people have the right to assemble in a peaceable manner, to consult for the common good, to make known their [211 Ill.App.3d 233] opinions to their representatives and to apply for redress of grievances."

Page 1302

[155 Ill.Dec. 691] 5. Defendant is bound to act in accord with the requirements of the Freedom of Information Act, Ill.Rev.Stat., ch. 116, sec. 201 et seq.

6. Defendant is bound to act in accord with the requirements of the Environmental Protection Act, Ill.Rev.Stat., ch. 111 1/2, sec. 1001, et seq. and the rules and regulations adopted pursuant to that act.

7. Defendant is bound to act in accord with the requirements of the federal Fair Labor Standards Act, 29 U.S.C. [§ ]201, et seq.

8. Defendant's compliance with the Constitution, Illinois statutes and regulations adopted thereunder and with federal statutes are matters of public policy of the State of Illinois.

9. In August 1985, Plaintiff was hired by Defendant to work in its water department; he continued to work there until he was fired on June 18, 1986.

10. On or about May 6, 1986, under the Freedom of Information Act, Ill.Rev.Stat., ch. 116, sec. 201 et seq., Plaintiff sought information regarding the financial operation of the Defendant, particularly that of the water department.

11. Agents of Defendant objected to Plaintiff's seeking this information, but eventually did provide Plaintiff with the requested information.

12. In late 1985 and continuing through the date Defendant fired Plaintiff, Plaintiff repeatedly addressed the Defendant on matters of public policy and public concern including:

a. In the Spring of 1986 Plaintiff repeatedly called to the attention of the individual members of the Defendant Board the dangerous condition that existed in the Defendant's water tower, namely, that the tower was not enclosed, the screen was in bad shape and was rusted, and that the bolts had rusted; these conditions violated the standards set forth by the Environmental Protection Agency of the State of Illinois.

b. On June 10, 1986, Plaintiff addressed the members of the Board of Defendant and presented to the Board the following, much of which was based on the information he obtained through his request under the Freedom of Information Act:

[211 Ill.App.3d 234] (1) an analysis of the finances and operations of the water plant including a history of the use of outside contractors and an historical analysis of the amounts of money spent on parts and labor;

(2) an historical analysis of the relationship of the amount of the Superintendent's salary to the total salary of those working under the superintendent;

(3) an analysis of the various parts installed in the water plant while Plaintiff had been employed there.

c. In 1987 Plaintiff advised Defendant that the Defendant's method of compensating him for overtime violated the federal Fair Labor Standards Act, 29 U.S.C. [§ ]201 et seq. in that he was working overtime at a greater rate than he was being paid.

d. Between June 10, 1986, and June 18, 1986, Plaintiff discussed with the individual members of the Defendant's Board the following problems:

a. the superintendent's abuse of driving the Defendant's truck and using it for his personal use;

b. the superintendent's abuse of equipment at the water plant.

13. On June 18, 1986, Defendant fired Plaintiff.

14. Plaintiff was fired by Defendant because he had called the above described problems to the attention of the Defendant.

15. It is against the public policy of the State of Illinois for Defendant to fire Plaintiff for his calling to Defendant's attention the dangerous condition related to the water tower and the violations of the Environmental Protection Agency regulations.

16. It is against the public policy of the State of Illinois for Defendant to fire Plaintiff for his calling to Defendant's attention that the method of compensating

Page 1303

[155 Ill.Dec. 692] for overtime violated the terms of the federal Fair Labor Standards Act.

17. It is against the public policy of the State of Illinois for Defendant to fire Plaintiff for calling to Defendant's attention the abuse of public monies and equipment owned by a public body.

18. It is against the public policy of the State of Illinois for Defendant to fire Plaintiff for exercising his rights as guaranteed him by Section 5 of Article I of the 1970 Illinois Constitution.

[211 Ill.App.3d 235] 19. Defendant's firing of Plaintiff was against the public policy of the State of Illinois.

20. As a direct and proximate result of Defendant's firing of Plaintiff, Plaintiff has suffered loss of income and other fringe benefits, pain, suffering, humiliation and embarrassment, loss of reputation and loss of Plaintiff's ability to work and advance in his chosen employment."

On October 17, 1989, the trial court entered an opinion order relating to the motion to dismiss the first-amended complaint. With regard to count I, the trial court struck paragraph Nos. 4, 5, 6, 7, 10, 11, 12a, 12b, 12c, 15, 16, and 18.

Section 2-615 of the Code of Civil Procedure (Code) ( Ill.Rev.Stat.1989, ch. 110, par. 2-615) provides that motions objecting to pleadings specify the defects complained of and request appropriate relief, including, but not limited to, striking a portion of a pleading because it is substantially insufficient in law or dismissing the action. So far as the facts alleged in the complaint are well pleaded, a motion to strike a portion of a complaint or to dismiss a complaint in its entirety on the grounds of insufficiency creates an issue of law. (Fellhauer v. City of Geneva (1991), 142 Ill.2d 495, 154 Ill.Dec. 649, 568 N.E.2d 870; Mazanek v. Rockford Drop Forge Co. (1981), 98 Ill.App.3d 956, 54 Ill.Dec. 368, 424 N.E.2d 1271; Midwest Glass Co. v. Stanford Development Co. (1975), 34 Ill.App.3d 130, 339 N.E.2d 274; Hamer v. Village of Deerfield (1975), 33 Ill.App.3d 804, 338 N.E.2d 242.) Therefore, in determining the propriety of the trial court's ruling, the reviewing court is concerned only with the questions of law presented by the pleadings. (Oswald v. Township High School District No. 214 (1980), 84 Ill.App.3d 723, 40 Ill.Dec. 456, 406 N.E.2d 157.) To state a valid claim for retaliatory discharge, the former employee must allege the dismissal was in retaliation for the employee's activities and contravened a clearly mandated public policy. However, merely citing a constitutional or statutory provision is not sufficient in the absence of allegations demonstrating the public policy mandated by the cited provisions as was violated by the discharge from employment. Fellhauer (1991), 142 Ill.2d 495, 154 Ill.Dec. 649, 568 N.E.2d 870.

The Illinois Supreme Court first recognized the tort of retaliatory discharge in Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, involving the discharge of plaintiff in retaliation for filing a workers' compensation claim. The court found the Workmen's Compensation Act (Act) (Ill.Rev.Stat.1973, ch. 48, par. 138.1 et seq.) had a beneficent purpose and a remedial nature. By affording protection to employees in the form of prompt and equitable compensation for injuries, the Act promotes the general welfare of the State and its enactment[211 Ill.App.3d 236] was in the furtherance of sound public policy. Therefore, the cause of action for retaliatory discharge was recognized to exist to implement that public policy.

To determine the contours of the tort of retaliatory discharge, the Illinois Supreme Court subsequently considered Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876. The majority opinion in Palmateer...