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02/11/88 Patricia Hinthorn, v. Roland's of Bloomington

February 11, 1988





519 N.E.2d 909, 119 Ill. 2d 526, 116 Ill. Dec. 694 1988.IL.208

Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County, the Hon. Luther H. Dearborn, Judge, presiding.


JUSTICE SIMON delivered the opinion of the court.


On September 6, 1985, plaintiff, Patricia Hinthorn, filed a complaint in the circuit court of McLean County against her previous employer, Roland's of Bloomington, Inc. (Roland's), alleging that she had been discharged in retaliation for asserting her rights to medical attention for a work-related injury. The complaint was dismissed with prejudice by the trial court for failure to state a cause of action for retaliatory discharge. The appellate court reversed and remanded, finding the complaint "barely sufficient to state a cause of action." (151 Ill. App. 3d 1006, 1009.) We allowed Roland's appeal pursuant to Supreme Court Rule 315(a). 107 Ill. 2d R. 315(a).

According to the complaint, plaintiff was working as a clerk in the shipping department of Roland's on Friday, February 8, 1985, when she suffered a back injury on the job. She had suffered two previous injuries at work during the preceding 12 months, had sought medical attention for those injuries, and had made claims for her medical bills under the Illinois Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). On Monday, February 11, 1985, plaintiff reported her back injury to her supervisor and requested medical attention. The supervisor instructed plaintiff to meet with the company's vice-president.

Plaintiff met with the vice-president the same day and informed him that she was in pain, required medical attention, and wished to seek such medical attention. The vice-president responded by telling plaintiff that she should seek other employment. He told plaintiff that she had been "getting hurt too much -- costing the company too much money," while directing her to sign a "Voluntary Resignation" form. The vice-president said that by signing the form, plaintiff would be able to leave her employment with Roland's under her own free will. Although plaintiff did not fully understand the meaning of the "Voluntary Resignation" form, she understood that she would lose her job if she did not sign it. Plaintiff then signed the form.

This court first recognized a cause of action for retaliatory discharge in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, in which an employer fired an employee after she filed a workers' compensation claim for a work-related injury. To ensure that the sound public policy underlying the Workers' Compensation Act could not be frustrated by the actions of an employer, the court held that the tort of retaliatory discharge should exist. (Kelsay, 74 Ill. 2d at 181.) A plaintiff states a valid claim for retaliatory discharge only if she alleges that she was (1) discharged; (2) in retaliation for her activities; and (3) that the discharge violates a clear mandate of public policy. (Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 529.) Mindful that on a motion to dismiss, all the allegations of the complaint, as well as all reasonable inferences therefrom, must be regarded as true (Katz v. Belmont National Bank (1986), 112 Ill. 2d 64, 67; Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, 7), we will examine each of these elements in turn.

Appellant contends that because plaintiff signed a "Voluntary Resignation" form, plaintiff was not "discharged" within the meaning of the retaliatory discharge concept and therefore can state no claim for retaliatory discharge. The appellate court wrestled with this issue, noting that the trial court relied heavily on Scheller v. Health Care Service Corp. (1985), 138 Ill. App. 3d 219, in dismissing the complaint. In Scheller, the plaintiff alleged that she had been severely harassed by her employer, and that this harassment caused her to resign. Plaintiff claimed that resignation under such circumstances amounted to a constructive discharge, making her employer liable to a claim for retaliatory discharge. (See Beye v. Bureau of National Affairs (1984), 59 Md. App. 642, 477 A.2d 1197 (recognizing "constructive discharge" as actionable element of a retaliatory discharge claim).) Relying on the language in Barr v. Kelso-Burnett (1985), 106 Ill. 2d 520, stating that the supreme court "'does not "strongly support" the expansion of the [retaliatory discharge] tort,'" the appellate court refused to extend the tort to include situations in which the plaintiff has been only constructively, not actually, discharged. Scheller, 138 Ill. App. 3d at 225, quoting Barr, 106 Ill. 2d at 525.

The appellate court here distinguished the facts of this case from those in Scheller. In Scheller the plaintiff admitted resigning voluntarily in response to the employer's actions. In the present case plaintiff did not claim that she was driven by the employer's actions to voluntarily resign, but that she resigned involuntarily only because she was explicitly directed to do so by her employer. The court reasoned that "[i]f an employer can obtain resignations from weaker willed and less sophisticated employees in order to retaliate against them for exercise of rights involving a public policy by threatening discharge, even by implication, the remedy promulgated by the retaliatory discharge doctrine can be significantly impaired." (151 Ill. App. 3d at 1008.) Therefore, the appellate court concluded that a cause of action for retaliatory discharge exists for an employee who has been "forced to resign under the express or implied threat of discharge," and that plaintiff had sufficiently alleged that she was "discharged" within the retaliatory discharge concept.

We agree that plaintiff has sufficiently alleged that she was discharged, but wish to make abundantly clear that we are not now endorsing the constructive discharge concept rejected by the appellate court in Scheller. We have no need to rule upon the viability of a constructive discharge theory at this time, because the plaintiff alleges that she was actually and not constructively discharged.

Plaintiff alleges that when she met with defendant's vice-president and requested medical attention, he told her that she should seek other employment. Such a statement, especially where as here, the employer simultaneously chastised the employee for being injured too often and costing the company too much money, could certainly be understood as a discharge. There are no magic words required to discharge an employee: an employer cannot escape responsibility for an improper discharge simply because he never uttered the words "you're fired." So long as the employer's message that the employee has been involuntarily terminated is clearly and unequivocally communicated to the employee, there has been an actual discharge, regardless of the form such discharge takes.

That defendant directed plaintiff to sign a "Voluntary Resignation" form also does not alter the allegation that plaintiff was involuntarily discharged. That Roland's required the official termination to be by the stroke of the employee's own pen does not shield it from liability for the act of discharge. At most, Roland's was offering plaintiff a way to save face, to keep her resume clear of a discharge. But from the alleged circumstances it is clear plaintiff was not being given an actual ...

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