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June 30, 1994



Rehearing Denied September 1, 1994. Released for Publication September 13, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Murray, Gordon, Cousins

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

The Village of Winnetka (Village) appeals and Norman DePluzer (Depluzer) cross-appeals from an order of the circuit court which granted the Village's motion for summary judgment in its favor with respect to count I of DePluzer's amended complaint (a breach of employment contract claim), but denied the Village's motion for summary judgment with respect to count II of the amended complaint (a retaliatory discharge claim) and then granted DePluzer's motion for voluntary dismissal of that count. For reasons we shall discuss, we affirm in part and reverse in part.

In May 1983, DePluzer applied for a maintenance position with the Village of Winnetka. DePluzer completed the Village's employment application form, providing his employment history and background. In June 1983 DePluzer was hired as a helper in the Village's utility department. He later was promoted to the position of "fireman," to work in the boiler room of the Village's electrical generating plant.

In August 1986, DePluzer notified his supervisor that he had a note from his physician indicating that he was suffering from progressive hearing loss and should not be exposed to loud noises in his work environment. Based upon this information, DePluzer and his supervisor completed an injury report on August 12, 1986.

In response to the injury report, the Village's plant superintendent, Fred Roberts, sent DePluzer a memorandum instructing him toprotect his hearing by wearing, simultaneously, both types of hearing protection devices supplied to him by the Village, i.e., ear plugs and ear muffs, whenever he was in the power plant during working hours. DePluzer, however, refused to wear the two devices simultaneously, claiming that this caused him discomfort.

On August 18, 1986, upon learning that DePluzer was refusing to wear ear muffs in addition to ear plugs, in disregard of the directive contained in his memo, Roberts suspended DePluzer for one day. After this first suspension DePluzer returned to work, but continued to disobey the directive to wear the two devices simultaneously. Consequently, he was suspended again, this time for three days, and given a memorandum informing him that his continued refusal to comply with the safety directive would result in his dismissal.

On the morning of September 2, 1986, DePluzer filed a workers' compensation claim (form dated August 27, 1986,) with the Illinois Industrial Commission. On the afternoon of September 2, 1986, DePluzer was discharged from his employment with the Village. When discharged, DePluzer was given a written termination notice which indicated that his termination was the result of his consistent failure to wear hearing protection equipment as directed.

On September 1, 1987, DePluzer filed a two-count complaint against the Village, alleging that he had been wrongfully and retaliatorily discharged due to the fact that he had voiced complaints regarding working conditions. The complaint was later amended on April 26, 1988. In the amended complaint, count I alleged a breach of the employment contract as set forth in the employees' handbook regarding grievances. Count II, which again alleged retaliatory discharge, now claimed that DePluzer had been discharged as a result of his exercise of his rights under the Illinois Workers' Compensation Act (Act).

After a plethora of filings, amended filings, motions, counter-motions and responses and after a mountain of discovery materials were requested, produced, submitted, and objected to, the Village filed a motion for summary judgment and DePluzer filed an emergency motion for voluntary dismissal without prejudice. Hearing was held on both of these motions on February 24, 1993, at which time the trial court entered an order which granted summary judgment in the Village's favor on count I of the amended complaint (breach of employment contract claim), denied summary judgment to the Village on count II of the complaint (retaliatory discharge claim) and granted DePluzer's request for voluntary dismissal as to count II only. Notions to reconsider were filed by both parties and were denied on April 5, 1993. The Village appealed and DePluzer cross-appealed.

Before addressing the merits of the appeal and cross-appeal, we must first address a motion to dismiss for lack of appellate jurisdiction, which DePluzer filed with this court on November 24, 1993. Objections to the motion were filed by the Village, DePluzer filed a motion to reply to the Village's objections and the Village objected to DePluzer's motion to reply to their objections. The Village characterizes the motion to dismiss as "frivolous" and suggests that this court impose sanctions against DePluzer in the form of costs and fees. This court decided to consider the entire matter with the case.

In DePluzer's motion to dismiss the Village's appeal, DePluzer contends that the order appealed from is not a final order. We note, however, that if the order appealed from is not a final order, we would be obliged to dismiss not only the Village's appeal, but DePluzer's cross-appeal, as well, since they both appealed from the ...

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