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Wheeler v. Caterpillar Tractor Co.

OPINION FILED OCTOBER 18, 1985.

WILLIAM E. WHEELER ET AL., APPELLANTS,

v.

CATERPILLAR TRACTOR COMPANY, APPELLEE.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 2, 1985.

Plaintiffs, William E. Wheeler and Judith A. Wheeler, appealed from the order of the circuit court of Macon County dismissing with prejudice counts III and VI of their six-count complaint against defendant, Caterpillar Tractor Company, and striking from counts I, II, IV and V the prayers for punitive or exemplary damages. The appellate court affirmed (123 Ill. App.3d 539), and we allowed plaintiffs' petition for leave to appeal (94 Ill.2d R. 315).

The appellate court affirmed the striking of the prayers for punitive damages, holding that the circuit court had entered no such order with respect to counts IV and V, and that, by failing to argue the point on appeal, plaintiffs had waived any error with respect to counts I and II. This appeal involves only counts III and VI.

In count III it was alleged that plaintiff, William E. Wheeler, had been employed by defendant since December 1955; that in August 1979 he was employed in defendant's X-ray department as a radiographer; that approximately eight months earlier he had been told by his supervisors that defendant was installing a Cobalt 60 unit that utilized live radioactive cobalt and that plaintiff would be expected to operate; and that plaintiff repeatedly requested that he not be required to operate the cobalt unit and that he be transferred out of the X-ray department for the reason that the cobalt unit was not properly operated and could cause serious and permanent injury. He alleged that cobalt 60 is a live source of radioactivity; that its safe handling requires more training than plaintiff was given; and that a Nuclear Regulatory Commission investigation disclosed a number of inadequacies and violations of regulations published in designated paragraphs of the Federal Register. Plaintiff also alleged that defendant refused to grant his request for transfer from the X-ray department and, in retaliation for his refusal to work with the cobalt unit, discharged him. He alleged, too, that the discharge was in contravention of the public policy of the State of Illinois and resulted from his employer's violation of federally mandated safety codes.

In count VI, plaintiff, Judith A. Wheeler, made substantially the same allegations, and further alleged that she had been deprived of plaintiff's services, society, companionship, and his conjugal relationship, and sought damages therefor.

In affirming the judgment, the appellate court, citing Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, held that to state a cause of action for the tort of retaliatory discharge requires that it be alleged in the complaint that the employee was discharged in retaliation for his activities, and that the discharge was in contravention of a clearly mandated public policy. The appellate court concluded that plaintiff William Wheeler was not attempting to remedy any possible rule violations, nor could they have played any part in his discharge, and therefore the clearly mandated public policy required under Palmateer was not present.

Because the order was entered upon allowance of a motion to dismiss, all facts properly pleaded must be taken as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 187.) In determining the sufficiency of the dismissed counts, we must apply the rule that no cause of action should be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover. Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 187; Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill.2d 128.

It is plaintiffs' contention that the enactment of Federal legislation and the promulgation of regulations, violations of which are alleged in the complaint, enunciate a clearly mandated public policy to be uniformly enforced throughout the United States. They argue that the complaint alleged that Mr. Wheeler was discharged in retaliation for his refusal to work in the face of these violations and that the complaint stated a cause of action. It is defendant's position that because the complaint alleged no communication to the appropriate authorities of plaintiffs' claims of violation of the regulations, the controversy remained an internal matter between employer and employee and no public policy question was involved.

The control of radioactive materials was preempted by the enactment of the Atomic Energy Act of 1954 (42 U.S.C. § 2011 et seq. (1982); Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Com. (1983), 461 U.S. 190, 75 L.Ed.2d 752, 103 S.Ct. 1713; Illinois v. Kerr-McGee Chemical Corp. (7th Cir. 1982), 677 F.2d 571), and the congressional findings (42 U.S.C. § 2012 (1982)) and declaration of policy (42 U.S.C. § 2011 (1982)) clearly enunciate a public policy which is national in scope.

Although not briefed or argued by the parties, we have, sua sponte, raised the question whether under the provisions of section 210 of the Energy Reorganization Act (42 U.S.C. § 5851 (1982)) the preemption is so extensive as to preclude the bringing of this action. Section 5851, in pertinent part, provides:

"(a) Discrimination against employee

No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) —

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C. § 2011 et seq.], or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

(2) testified or is about to testify in any such proceeding or;

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic ...


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