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05/27/87 Herbert Hugo, v. Jim Tomaszewski

May 27, 1987

HERBERT HUGO, PLAINTIFF-APPELLANT

v.

JIM TOMASZEWSKI, D/B/A HOYLETON AG STORE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

508 N.E.2d 1139, 155 Ill. App. 3d 906, 108 Ill. Dec. 562 1987.IL.686

Appeal from the Circuit Court of Washington County; the Hon. Francis E. Maxwell, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. KASSERMAN and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiff, Herbert Hugo, filed a complaint in the circuit court of Washington County against defendant, Jim Tomaszewski, d/b/a Hoyleton AG Store, alleging retaliatory discharge and a breach of the implied covenant of good faith and fair dealing. The trial court struck the portions of plaintiff's complaint referring to the covenant of good faith and fair dealing, then granted defendant's motion for summary judgment on the retaliatory discharge claim. Plaintiff appeals contending a genuine issue of material fact remains in the case precluding summary judgment. He also asks us to recognize a new cause of action for at-will employees based upon the breach of the implied covenant of good faith and fair dealing.

Defendant owns a retail establishment in Hoyleton which is a combined grocery store, hardware store, and dry-goods store. Defendant purchased the business from Edgar Reinkensmeyer in April of 1984. Plaintiff had begun working in the store under Reinkensmeyer's ownership in 1962 and was retained by defendant after defendant purchased the business, although some of the terms of plaintiff's employment changed under the new owner, including the elimination of some benefits.

On January 9, 1985, plaintiff broke his hip when he fell on ice which had accumulated in the store's parking lot. Surgery was performed which repaired the hip, but plaintiff was unable to return to work during his recovery. Plaintiff received temporary total disability payments through defendant's insurance carrier retroactive to January 9, 1985. In the summer of 1985, a doctor gave plaintiff a partial release allowing him to return to work if he followed certain restrictions. Plaintiff was not to lift anything weighing over 50 pounds and was not to stay on his feet longer than four hours at a time.

On July 12, 1985, plaintiff, along with Dorothy Hunt, a rehabilitation specialist who had been assisting plaintiff in his recovery, went to the store to give defendant this work release. Defendant, after looking at the release, told plaintiff he was being laid off. The facts to this point are not in dispute.

In a deposition, plaintiff stated that after the accident he contacted defendant, who notified the workers' compensation carrier, and that plaintiff received benefits during 1985. A doctor gave plaintiff a restrictive work release in July of 1985 and a total work release on December 6, 1985. Plaintiff also stated that he went to the store in May of 1985 and asked defendant, "Have I still got a job?" Defendant replied, "I guess so." Plaintiff stated that on July 12, 1985, when he gave defendant the restrictive work release, defendant told him "business had fallen off, and he had to lay me off." Plaintiff admitted in his deposition that the butcher at the store as well as the former owner of the business had told him business had "fallen off." Counsel for defendant asked plaintiff, "And as far as you know, that [drop in business] was the only reason you were laid off?" Plaintiff responded, "Yes." In an affidavit subsequent to his deposition, plaintiff stated: "Although I do not have personal knowledge of Mr. Tomaszewski's motives for discharging me, the reason that I stated in my deposition testimony that I knew of no reason why I was fired other than what I was told is because I was trying to answer the questions posed to me as truthfully as I could. I cannot read Mr. Tomaszewski's mind. I believe, based on the circumstances surrounding my firing, that the only reason he discharged me is because I was pursuing my Worker's Compensation remedies against him." In his affidavit plaintiff also stated that on July 12, 1985, after he handed defendant the work release, defendant "looked it over and then discharged me on the spot." Plaintiff stated that he had talked by telephone with defendant several times after the accident and that defendant never told plaintiff his job was in jeopardy or that business was bad.

Dorothy Hunt, the rehabilitation specialist, stated in an affidavit that defendant had told her plaintiff would need a work release before he could return to work. She accompanied plaintiff to the store on July 12, 1985, and according to Hunt, defendant looked at the release, then said to plaintiff, "I'll have to let you go."

Defendant stated in a deposition that between the time he bought the store and the time of plaintiff's accident, business had declined 20% to 25%, with the biggest decline in the hardware department, which is where plaintiff worked. Defendant stated that plaintiff had come into the store after the accident and asked, "Will I have my job?" Defendant replied, "I'll see." In his deposition, defendant admits he considered plaintiff to be an employee of the store as late as April of 1985. Defendant stated that although he had studied the declining business situation "probably for a long time," that "I guess you could say I made that decision [to lay off plaintiff] that morning when he was released from the doctors." He told plaintiff that because business was down he would "have to lay him off."

Plaintiff filed a complaint alleging retaliatory discharge in that he was discharged for exercising his rights granted to him by the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). He also alleged a breach of the implied covenant of good faith and fair dealing in that defendant discharged him without reasonable cause and gave him a false reason for the discharge. The trial court struck the portions of plaintiff's complaint referring to a violation of the implied covenant of good faith and fair dealing, then subsequently granted defendant's motion for summary judgment on the retaliatory discharge claim.

We first address whether summary judgment for defendant was proper on plaintiff's retaliatory discharge claim. Summary judgment is proper only "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).) Because summary judgment is a drastic remedy, it is to be granted only where the evidence, when construed most strongly against the moving party, ...


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