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Thomas v. Zamberletti

OPINION FILED JULY 11, 1985.

ELIJAH THOMAS, PLAINTIFF-APPELLANT,

v.

JOSEPH ZAMBERLETTI ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff filed a complaint against the defendants, his former office manager and employer, alleging "wrongful discharge" and breach of contract. Defendants subsequently moved to dismiss the complaint, and the circuit court granted the motion. On appeal, plaintiff contends that the complaint did state a cause of action for wrongful (or retaliatory) discharge and that the circuit court erred by dismissing it.

Plaintiff filed his six-count complaint on February 10, 1984. Counts I, II, III, and IV alleged that plaintiff had been wrongfully discharged. Plastipak Packaging, Inc. (Plastipak), was named as defendant in counts III and IV, while Joseph Zamberletti, Plastipak's office manager, was named as defendant in counts I and II. Counts I and III requested compensatory damages and counts II and IV requested punitive damages. Counts V and VI alleged breach of an oral employment contract.

The complaint alleged that plaintiff had been hired by Plastipak on August 9, 1983. On October 14, 1983, at approximately 1 p.m. plaintiff was injured in an automobile accident when the car in which he was a passenger was struck by another vehicle. Plaintiff was taken by ambulance to a Champaign hospital. He was treated there and subsequently released at approximately 5 p.m. on the same day. Plaintiff had been scheduled to work at 3 p.m. that day, and when he failed to report to work, his employment was terminated as of that date. The complaint further alleged that "it is the public policy of the State of Illinois for injured persons to receive medical attention, particularly in an emergency situation." Plaintiff then alleged that the termination of his employment "for said reason, violates the public policy of the State of Illinois."

Following a hearing, the circuit court granted defendants' motion to dismiss counts I through V of the complaint on March 22, 1984, and granted the motion to dismiss count VI on March 29, 1984. In its order of March 22, 1984, the circuit court found that "seeking or obtaining medical attention or care, even in an emergency, is not a matter of public policy."

The circuit court granted plaintiff leave to plead counts V and VI over; however, plaintiff, himself, moved to dismiss these counts on April 11, 1984. On the same date, the circuit court dismissed counts V and VI and found no just reason to delay appeal. Plaintiff then filed timely notice of appeal.

Plaintiff appeals only from the dismissal of counts I through IV of his complaint for failure to state a cause of action. Specifically, he argues that he properly stated a cause of action for retaliatory discharge. Defendants respond, and the circuit court found, that plaintiff failed to properly allege that his employment termination contravened any clear public policy of the State of Illinois.

• 1 To withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. (Jones v. Eagle II (1981), 99 Ill. App.3d 64, 424 N.E.2d 1253.) Unless it clearly appears that no set of facts could be established which would entitle plaintiff to relief, a dismissal with prejudice should not be made. (Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill.2d 128, 361 N.E.2d 575.) Pleadings are to be liberally construed in favor of the plaintiff, and if the facts alleged demonstrate any possibility of recovery, the order of dismissal will be reversed. Conyers v. Molloy (1977), 50 Ill. App.3d 17, 364 N.E.2d 986.

• 2 With the decision of Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353, Illinois joined the growing number of States recognizing the tort of retaliatory discharge. This tort is an exception to the general rule that an "at-will" employee can be discharged at any time for any cause. To state a cause of action for retaliatory discharge "[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." (Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 134, 421 N.E.2d 876, 881.) On appeal, plaintiff concedes that he was an "at-will" employee.

In count I of his complaint, entitled "Wrongful Discharge," the plaintiff states that he was discharged "for failing to show up for work on October 14, 1983, at 3:00 p.m." The complaint also states that he was in a hospital at that time, receiving treatment for injuries he had suffered. The plaintiff then alleges that his discharge was in contravention of the public policy of Illinois that a person should receive medical attention, particularly in an emergency situation.

• 3 Initially, we believe that plaintiff has failed to properly state a cause of action for retaliatory discharge. Nowhere in the record does the plaintiff allege that he was discharged in retaliation for receiving medical treatment. Indeed, there is no indication that his employer knew of the reason for his failure to report to work. Plaintiff alleged only that he was discharged for failing to report to work. Such a reason for discharge violates no public policy of the State of Illinois, and plaintiff does not allege so. While plaintiff does allege that there is a public policy in favor of medical treatment for injuries, he has failed to allege that he was fired in retaliation for receiving medical treatment. Plaintiff's failure to ascribe a retaliatory motive to his employer in this regard results in a failure to state a cause of action for retaliatory discharge. Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353; Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 421 N.E.2d 876.

• 4 In any event, we also believe that an employee's discharge for seeking and receiving medical treatment violates no clear public policy of this State.

No Illinois court has been faced with a similar public policy contention. In Kelsay, the supreme court held that discharging an employee for filing a workers' compensation claim violated the clear public policy enunciated in the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). In Palmateer, the supreme court held that discharging an employee for assisting the police in the investigation and prosecution of suspected crimes violated the clear public policy in favor of the enforcement of the criminal code of Illinois. (See also Petrik v. Monarch Printing Corp. (1982), 111 Ill. App.3d 502, 444 N.E.2d 588.) Recently the supreme court held that an employer's discharge of an employee upon discovering that the employee had filed a workers' compensation claim against another employer was violative of the same clear public policy that was found in Kelsay. (Darnell v. Impact Industries, Inc. (1984), 105 Ill.2d 158, 473 N.E.2d 935.) Additionally, this court has recently held that an employee's discharge for refusing to work with possibly dangerous equipment did not contravene any clear public policy. (Wheeler v. ...


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