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08/30/88 Martin Abrams, v. Echlin Corporation Et Al.

August 30, 1988

MARTIN ABRAMS, PLAINTIFF-APPELLANT

v.

ECHLIN CORPORATION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

528 N.E.2d 429, 174 Ill. App. 3d 434, 123 Ill. Dec. 884 1988.IL.1322

Appeal from the Circuit Court of Cook County; the Hon. Odas J. Nicholson, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Plaintiff brought this action charging his former employer and its president with retaliatory discharge. The trial court granted the defendants' motion to dismiss the action pursuant to section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). Plaintiff appeals, charging that the trial court erred in dismissing his suit.

Plaintiff's employment as a salesman by EPE, Inc. , began in 1983 and ended on February 21, 1985. During the calendar year 1984 he worked pursuant to a written agreement that provided for the payment of wages which included commissions earned on sales exceeding 80% of his "quota"; one half the commissions were payable quarterly and the remainder annually. The contract also included a clause that commissions paid on merchandise returned by a customer were to be "charged back" against the salesman's account. There is no dispute as to the "at will" status of plaintiff's employment.

In early 1985, plaintiff and EPE had a dispute as to whether commissions on merchandise sold in 1984 and returned by the customer in January 1985 would be charged back against the 1984 or 1985 commissions. Plaintiff maintained that he was owed commissions totaling $4,250. After some Discussion between plaintiff and the national sales manager for EPE, $2,250 of the amount claimed due was paid, which left a disputed balance of $2,000.

On February 15, 1985, plaintiff sent a letter to Bjarne Qvale (Qvale), the president of EPE, explaining the problem and complaining that he had not been paid the amount owed to him. Six days later, while plaintiff was at a customer's place of business in Chicago, Qvale had a telephone conversation with plaintiff, in which he told him, "I have just read your letter. No one tells me how to run my business. You are terminated, and you are to leave the customer's place of business immediately."

Abrams filed a complaint grounded in retaliatory discharge in violation of the Illinois Wage Payment and Collection Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 39m-14) against EPE, Qvale and the Echlin Corporation (Echlin), which had acquired EPE Inc., since plaintiff's discharge. Echlin filed a motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), but this motion was not ruled on since Echlin was later dismissed from the case by an agreed order. Subsequently, EPE filed a motion to dismiss the action pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(9)), charging, inter alia, that plaintiff's complaint contained a Conclusion rather than a well-pleaded fact regarding his discharge, that neither the specific reason for plaintiff's discharge nor plaintiff's letter regarding the commission dispute indicate any reliance on or reference to the Illinois Wage Payment and Collection Act or any relationship between the Act and plaintiff's discharge, and that no public policy dispute was involved between the parties but rather one arising out of a purely private matter-their written agreement. The court granted the motion after hearing argument thereon. Upon denial of plaintiff's motion to reconsider, in which plaintiff stated that the court had misapprehended the meaning of the statute, a timely appeal was filed.

Opinion

Although defendants properly filed a motion to dismiss under section 2-619 of our Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), the case was presented to both the trial court and to this court very largely on the ground that plaintiff failed to state a cause of action; our Discussion here will accordingly treat substantially with that issue.

In order to state a cause of action for retaliatory discharge

"[all] 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.)

(See also Brazinski v. Transport Service Co. (1987), 159 Ill. App. 3d 1061, 1068, 513 N.E.2d 76; and generally Yonover, Retaliatory Discharge in Illinois: Recent Developments, 61 Chi. Kent L. Rev. 671 (1985).) Thus, in order to survive a motion to dismiss, plaintiff must plead facts that establish retaliation in the firing of an at-will employee in contravention of a public policy.

Plaintiff's complaint asserts that his employment was terminated because he stated to Qvale that he would take legal action to enforce his rights under the Illinois Wage Payment and Collection Act (Ill. Rev. Stat. 1985, ch. 48, par. 39m-1 et seq.) and under the terms of the agreement he had with EPE. Plaintiff acknowledges that he did not specifically mention the Act in his letter, but defendants concede that such specific reference is not necessary to state a cause of action.

Defendants contend that plaintiff's statement regarding the reason for his discharge was a Conclusion not supported by any allegations of specific facts, and they point to the trial memorandum of plaintiff in which he states, "Of course the statement is conclusory in nature at this point. But Mr. Abrams intends to prove the fact at trial." Plaintiff argues that the Conclusion "is no less than a reasonable inference supported by the other specific factual allegations of the complaint."

This court set forth the standard to be applied in considering a motion to dismiss for failure to state a cause of action in Skinner v. Mahomet Seymour School District (1980), 90 Ill. App. 3d 655, 413 N.E.2d 507, as follows:

"There are certain general rules of construction to be applied when a complaint is challenged for failure to state a cause of action. The essential test of the sufficiency of the complaint is whether it reasonably informs the defendant of a valid claim under a general class of cases of which the court has jurisdiction. [Citation.] In determining the sufficiency of the complaint, the court must accept as true all well pleaded facts and reasonable inferences drawn therefrom. [Citation.] No pleading is bad in substance where it reasonably informs the opposite party of the nature of the claim. [Citation.] Finally, a complaint should not be dismissed for failure to ...


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