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Mccluskey v. Clark Oil & Refining Corp.





Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.


This is a permissive interlocutory appeal from the trial court's order denying defendant's motion to dismiss plaintiff's claim for retaliatory discharge. We reverse.

Plaintiff, Patricia McCluskey, brought this action against her employer, Clark Oil and Refining Corporation, alleging in count I of her complaint that she was discharged from employment solely because she married a co-worker, and that such discharge was in violation of the laws and statutes of this State, as well as public policy. Defendant filed a motion to dismiss plaintiff's claim, which the trial court denied on May 8, 1985. Shortly thereafter, the supreme court issued its decision in Barr v. Kelso-Burnett Co. (1985), 106 Ill.2d 520, 478 N.E.2d 1354. The trial court denied defendant's motion to reconsider in light of the Barr decision, but certified the following question for interlocutory appeal under Supreme Court Rule 308(a):

"Whether there is a sufficiently mandated public policy of the State of Illinois as expressed in the Illinois Marriage and Dissolution of Marriage Act, Ill. Rev. Stat. ch. 40, sec. 101 et seq., other statutes of the State of Illinois, case law, and the inherent right of an individual to marry the person of his or her choice on which to base an action for retaliatory discharge."

We believe the court's holding in Barr, and the reasoning employed by that court, to be dispositive of the issue now before us. Plaintiffs in Barr had been employed by the defendant as construction foremen. Plaintiffs claimed that they were discharged for "intimidation of fellow employees" after they had peaceably informed fellow workers of layoff procedures being utilized by the defendant, and alleged that their discharge infringed on certain constitutional and statutory rights, including freedom of speech, due process, equal protection and privacy. While plaintiffs conceded that the constitutional and statutory provisions encompassing these rights were limitations only on the power of government, they nonetheless claimed that the provisions themselves were "indicators of public policy" and that a violation of these rights by anyone thus constituted a violation of public policy.

The supreme court rejected plaintiffs' claim stating:

"The fact that a constitutional or statutory provision is cited in the complaint, however, does not give rise to a retaliatory-discharge cause of action. The test for determining if the complaint states a valid cause of action is whether the public policy clearly mandated by the cited provisions is violated by the plaintiff's discharge. (Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 134.) The application of this test necessarily involves determining what the public policy is behind the enactment or adoption of the particular provision. The public policy underlying a statutory or constitutional provision is found by examining the history, purpose, language and effect of the provision." Barr v. Kelso-Burnett Co. (1985), 106 Ill.2d 520, 527, 478 N.E.2d 1354.

The court went on to note that the public policy of this State concerning the protection of constitutional and civil rights in the employer-employee relationship is expressed in the Illinois Constitution (Ill. Const. 1970, art. I, secs. 17, 19) and in the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 1-101 et seq.), and that there is nothing in either the Constitution or the Act to mandate the inclusion of the right of free speech into those rights which are applicable to the employer-employee relationship. The court then concluded that the public policy which was mandated by the provisions cited in the plaintiffs' complaint was that the power of government, not private individuals, be restricted, and that the subject provisions did not, therefore, mandate any public policy which was violated by the discharge of plaintiffs. (Barr v. Kelso-Burnett Co. (1985), 106 Ill.2d 520, 528, 478 N.E.2d 1354.) See also Price v. Carmack Datsun, Inc. (1985), 109 Ill.2d 65, 485 N.E.2d 359 (complaint for retaliatory discharge by plaintiff who had filed claim under defendant-employer's group health insurance plan dismissed where purpose of the Illinois Insurance Code was found to govern operations of insurance companies, and not insureds such as defendant-employer); compare Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill.2d 502, 485 N.E.2d 372 (upholding cause of action for retaliatory discharge for refusal to work under conditions which violated safety regulations applicable to defendant-employer).

The court in Barr also discussed its earlier decision in Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 421 N.E.2d 876, a case principally relied on by plaintiff here. In Palmateer, plaintiff-employee was allegedly discharged for providing the police with information concerning possible criminal conduct by a co-employee and for assisting the police in their investigation of the allegations. The court found a cause of action for retaliatory discharge to exist in order to insure that the public policy behind the enactment and enforcement of the Criminal Code, which necessarily favored the exposure of violations of the Code, would not be frustrated. (85 Ill.2d 124, 132-33, 421 N.E.2d 876.) The Barr court went on to deny the assertion by plaintiffs there that the court had, by Palmateer and other of its earlier decisions, rejected a narrow interpretation of the tort of retaliatory discharge in favor of a more expansive interpretation of the tort. Barr v. Kelso-Burnett Co. (1985), 106 Ill.2d 520, 525, 478 N.E.2d 1354.

Turning to the instant case, we must now determine whether plaintiff's discharge violated a clearly mandated public policy, as set forth in the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.) (Act), other statutes, relevant case law or constitutional provisions.

Plaintiff contends that such clearly mandated policy is embodied in the Act, which provides in relevant part:

"Sec. 102. Purposes — Rules of Construction. This Act shall be liberally construed and applied to promote its underlying purposes, which are to:

(1) provide adequate procedures for the solemnization and registration of marriage;

(2) strengthen and preserve the integrity of marriage and safeguard ...

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