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Burgess v. Chicago Sun-times

OPINION FILED MARCH 26, 1985.

KENT BURGESS, PLAINTIFF-APPELLANT,

v.

CHICAGO SUN-TIMES, A DIVISION OF FIELD ENTERPRISES, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Brian B. Duff, Judge, presiding.

JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Plaintiff, Kent Burgess, instituted the present action alleging retaliatory discharge, breach of an implied covenant of fair dealing, and intentional infliction of emotional distress on the part of his former employer, defendant Chicago Sun-Times. The trial court dismissed plaintiff's complaint with prejudice, and subsequently denied his motion for reconsideration and for relief from judgment. Plaintiff now contests the propriety of these orders, seeking reversal only of the dispositions as to the retaliatory discharge and emotional distress claims.

Plaintiff was employed by the defendant as a driver for the purpose of delivering newspapers to retail vendors for sale to the public. The plaintiff and his fellow drivers were covered by a collective bargaining agreement with the defendant. The agreement expressly authorized the defendant to designate the delivery routes of its employees.

On July 6, 1982, plaintiff, during the course of his employment, claimed to have been assaulted by an unknown third party. Plaintiff's requested reassignment to another route was denied by the defendant.

On July 13, 1982, plaintiff, during the course of his employment, claimed to have been the victim of an armed robbery. Again plaintiff's requested reassignment to another route was denied by the defendant.

The record reveals that plaintiff did not make any claim under the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) and did not, individually or through his collective bargaining agent, institute any grievance action pursuant to the collective bargaining agreement. Instead, plaintiff chose not to return to work on the same route, claiming he suffered from severe stress and anxiety. When plaintiff persisted in his request for reassignment to another route and refused to return to the route assigned, he was discharged by defendant.

On March 2, 1983, plaintiff filed a three-count complaint against defendant claiming retaliatory discharge, breach of an implied covenant of fair dealing, and intentional infliction of emotional distress. On May 13, 1983, defendant filed a motion to dismiss with prejudice. The trial court ordered briefs to be filed and set the matter for September 15, 1983. Briefs were filed on time by both parties, but plaintiff's attorney did not appear on September 15, 1983, due to a clerical error of his office in scheduling cases. The court delayed its proceedings for about an hour. Attorneys for the defendant appeared on time and returned an hour later as requested by the court. Although not required to do so, defendant's attorney did not attempt to reach opposing counsel or his office to notify him of the court's short delay. The court noted that the hearing date was set by agreement of the parties and proceeded to decide the motion on the written briefs that were on file. An order was entered dismissing plaintiff's complaint with prejudice.

Following a hearing on October 19, 1983, with both counsel present, the trial court denied plaintiff's motion to vacate and reconsider. On November 10, 1983, plaintiff filed a motion for relief from judgment pursuant to section 2-1401 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401.) This motion was denied on December 19, 1983, after which plaintiff filed a timely notice of appeal. Plaintiff does not contest the dismissal of count II dealing with breach of an implied covenant of fair dealing.

I

The first question for resolution is whether count I of plaintiff's complaint was properly dismissed for failure to state a cause of action for retaliatory discharge.

In Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353, our supreme court held that, for the first time in Illinois, a cause of action should exist for employees who were discharged for filing Workers' Compensation claims. In its analysis, the court determined that the purpose of the Workers' Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) would be seriously undermined if employers could coerce employees to forego their statutory rights under the Act by threatening to terminate employees who sought compensation for industrial injuries. Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 181-82.

In Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 421 N.E.2d 876, our supreme court granted leave to appeal in order to determine the "contours" of the tort of retaliatory discharge recognized in Kelsay. The employee in Palmateer was terminated for informing local law-enforcement authorities of suspected criminal activities of his co-employee, and for agreeing to assist in the investigation and trial of the co-employee if requested. In holding that the plaintiff-employee's complaint had stated a cause of action for retaliatory discharge, the court held: "The foundation of the tort of retaliatory discharge lies in the protection of public policy, and there is a clear public policy favoring investigation and prosecution of criminal offenses." (85 Ill.2d 124, 133.) As a result, the Palmateer court concluded that in order to bring a cause of action under Illinois law, "[a]ll that is required is that the employer discharge the employee in retaliation for the employee's activities, and that the discharge be in contravention of a clearly mandated public policy." 85 Ill.2d 124, 134.

The grounds on which count I of plaintiff's complaint was dismissed were: (1) that plaintiff did not exhaust the administrative remedies provided in the collective bargaining agreement between defendant and plaintiff's union; (2) that there are no allegations that plaintiff was discharged in retaliation for filing a Workers' Compensation claim; and (3) that no cause of action was stated due to the factual insufficiency of the allegations.

• 1 First, as defendant concedes, a cause of action for retaliatory discharge is now recognized in Illinois "independent of any contract remedy the employee may have based on [a] collective-bargaining agreement." (Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill.2d 143, 149.) Plaintiff need not even plead the exhaustion of ...


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