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08/23/89 Earl W. Pethan, Jr., v. Peavey Company

August 23, 1989





544 N.E.2d 17, 188 Ill. App. 3d 126, 135 Ill. Dec. 660

August 23, 1989, filed

Appeal from the Circuit Court of Madison County; the Hon. Charles Chapman, Judge, presiding.


Plaintiff, Earl W. Pethan, Jr., appeals from an order of the circuit court of Madison County dismissing his second amended complaint regarding count II for retaliatory discharge. The issue before this court is whether plaintiff stated a cause of action for retaliatory discharge. This court reverses and remands for further proceedings.

On March 26, 1984, plaintiff filed this action against defendant, Peavey Company, seeking compensation for injuries inflicted by another employee during working hours. In defendant's answer, it raised the affirmative defense that the injuries were "either caused by or in the alternative, contributed to, by plaintiff's own carelessness and negligence," or that his injuries were inflicted out of plaintiff's own provocation of the other employee, and that both plaintiff and the other employee "were acting outside of the scope of their employment." Defendant also stated as an affirmative defense that the other employee was acting out of self-defense.

On August 17, 1987, plaintiff filed a motion to amend to add count II for wrongful termination. On August 21, 1987, and September 10, 1987, defendant filed memoranda in opposition to plaintiff's motion. After a hearing on September 10, 1987, the court granted the motion to amend but also granted defendant's oral motion to dismiss count II for failure to state a cause of action. On September 16, 1987, plaintiff filed its amended complaint alleging wrongful discharge. Defendant subsequently filed a motion to dismiss. After a hearing on October 18, 1987, the court dismissed count II of the amended complaint. On November 23, 1987, defendant filed a motion to dismiss with prejudice the complaint because plaintiff has failed to refile an amended complaint and count I was settled. On January 8, 1988, plaintiff filed a notice of appeal.

The issue before this court is whether plaintiff stated a cause of action in retaliatory discharge. Plaintiff argues that his complaint gives rise to several possibilities of recovery pursuant to Illinois law and general maritime law.

It is well established that no action should be dismissed unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61, 466 N.E.2d 224, 226.) A complaint should not be dismissed if facts alleged therein and reasonable inferences therefrom indicate any possibility of recovery. Towne v. Cole (1985), 133 Ill. App. 3d 380, 382, 478 N.E.2d 895, 897.

In order to maintain an action for wrongful discharge plaintiff must allege that he was (1) discharged, (2) in retaliation for his activities, and (3) that the discharge violates a clear mandate of public policy. (Hinthorn v. Roland's of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911.) The only element at issue in this case is whether the discharge violated a clear mandate of public policy. Plaintiff was discharged for fighting. In defining public policy, the court in Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878, stated:

"In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State's constitution and statutes and, when they are silent, in its judicial decisions. [Citation.] Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen's social rights, duties, and responsibilities before the tort will be allowed."

The Palmateer court stated further:

"There is no public policy more important or more fundamental than the one favoring the effective protection of the lives and property of citizens. [Citations.]" (85 Ill. 2d at 132, 421 N.E.2d at 879-80.)

The foundation of the tort of wrongful discharge lies in the protection of public policy. In this case plaintiff was acting to protect his person. Nothing is more fundamentally recognized than the right to use force against another when, and to the extent that, he reasonably believes that such conduct is necessary to defend himself against such other's imminent use of unlawful force. (People v. Ranola (1987), 153 Ill. App. 3d 92, 96-97, 505 N.E.2d 1191, 1195.) The General Assembly codified that right in section 7-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 7-1). That right affects the citizens of the State collectively and as such meets the definition of public policy. (Pratt v. Caterpillar Tractor Co. (1986), 149 Ill. App. 3d 588, 590, 500 N.E.2d 1001, 1002-03, citing Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878.) Plaintiff alleged that he did not provoke the attack and that he attempted to defend himself. However, defendant discharged plaintiff without questioning or investigating the incident. Although an employer may discharge an employee for any reason or no reason whether good or bad, an employer cannot discharge an employee in violation of a public policy. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878.) Moreover, when defendant rehired the employee who allegedly provoked the altercation after plaintiff filed this action, defendant only reinforced the allegation of wrongful discharge.

Thus, this court finds that the trial court erred when it dismissed plaintiff's complaint. Plaintiff alleged sufficient facts to support a cause of action for wrongful discharge.

Defendant argues that plaintiff failed to allege that his discharge was in retaliation for defending himself. The second element of wrongful discharge "requires that plaintiff allege the causal relationship between the employee's activities and the discharge." (Hinthorn v. Roland's of Bloomington, Inc. (1988), 119 Ill. 2d 526, 532, 519 N.E.2d 909, 912.) The causality element will not exist where the basis for the discharge is valid and nonpretextual. Motsch v. Pine Roofing Co. (1989), 178 Ill. App. 3d 169, 174, 533 N.E.2d 1, 5.

The complaint does sufficiently allege that plaintiff was discharged for defending himself in an altercation with another employee. Later, the alleged instigator of the altercation was rehired while plaintiff was not. Moreover, between the time of the discharge and the time the other employee was rehired, plaintiff had filed a claim for personal injuries. These facts sufficiently allege a causal relationship between plaintiff's activities and his discharge.

Defendant also argues that since no investigation or questioning was conducted after the altercation, defendant lacked the requisite retaliatory motive when it discharged plaintiff. However, an employee should not refrain from an action which he has every right to do, whether it is filing a worker's compensation claim (Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 473 N.E.2d 1280), reporting employee theft (Petrik v. Monarch Printing Corp. (1982), 111 Ill. App. 3d 502, 444 N.E.2d 588), or defending himself as in this case because he fears discharge. To hold otherwise would abrogate the established rule permitting the tort of retaliatory discharge.

For the foregoing reasons, the order of the circuit court of Madison County is reversed and remanded for further proceedings consistent with this opinion.

WELCH, P.J., and HARRISON, J., concur.


Reversed and remanded.


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