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NAPPI v. MERIDIAN LEASING CORP.

July 12, 1994

DAVID J. NAPPI, Plaintiff,
v.
MERIDIAN LEASING CORP., an Illinois Corporation, UNILEASE COMPUTER CORPORATION, a Delaware Corporation, and MERIDIAN INFORMATION SERVICES, INC., a Minnesota Corporation, Defendants.


NORDBERG


The opinion of the court was delivered by: JOHN A. NORDBERG

Plaintiff David J. Nappi was dismissed from his employment with Defendant Meridian Leasing Corporation, its wholly owned subsidiaries Defendant Unilease Computer Corporation, Defendant Meridian Information Services, Inc. and IBL Corporation *fn1" (collectively referred to as "Meridian"). Nappi has now sued the Defendants in a four count Complaint. Before the Court is Defendants' Motion to Dismiss Counts One, Three, and Four of the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

 ANALYSIS

 1. Standard

 In order to survive a motion to dismiss, a complaint must allege sufficient facts to outline a cause of action. Davis v. Frapolly, 747 F. Supp. 451 (N.D. Ill. 1989). The complaint "must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory." Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Dev. Co., 758 F.2d 203, 207 (7th Cir. 1985). The Court must accept as true all facts alleged in the complaint and reasonable inferences based on those facts. Bane v. Ferguson, 890 F.2d 11, 13 (7th Cir. 1989). However, the Court need not accept as true conclusory legal allegations. Coronet Ins. Co. v. Seyfarth, 665 F. Supp. 661, 665 (N.D. Ill. 1987). A motion to dismiss may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 The Court notes that Defendants have appended materials outside the Complaint to their motion to dismiss. These materials are hereby stricken as inappropriate evidentiary submissions. A party may not support a Rule 12(b)(6) motion with materials outside the complaint. While the Court has the option of converting such a motion into a motion for summary judgment, Fed. R. Civ. P. 12(b)(6), the Court here declines to do so.

 2. Improperly Named Defendants

 Before turning to the substance of Plaintiff's claims, the Court holds that Plaintiff has failed to properly notify each Defendant of its role in the alleged torts and statutory violations. Plaintiff makes no allegation as to which of the corporate Defendants actually employed him; and, he makes no allegation supporting a veil piercing theory. Instead, he refers collectively to the Defendants and a non-party, IBL Corporation, as "Meridian." Given that Plaintiff has failed to demonstrate that the corporations are alter egos of one another, he does not properly implicate any of the Defendants.

 Accordingly, each of the Defendants is dismissed. Plaintiff is directed to file an amended complaint properly identifying his employer and the specific role that any named Defendant played in the alleged torts and statutory violations. Below, the Court evaluates Plaintiff's claims as if they were made only against the Plaintiff's employer.

 3. Count One

 Count One is a claim for retaliatory discharge. Plaintiff claims that he discovered criminal activity by Meridian in Meridian's business of remarketing computer hardware and was discharged for reporting the activity to his superiors at Meridian.

 The Supreme Court of Illinois recognized the tort of retaliatory discharge in Kelsay v. Motorola Inc., 74 Ill. 2d 172, 384 N.E.2d 353, 23 Ill. Dec. 559 (Ill. 1978). An exception to the employment at will doctrine, the retaliatory discharge tort is an attempt to balance employers' interests in operating efficient businesses, thereby permitting them to fire an employee for any reason or no reason, see Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 478 N.E.2d 1354, 88 Ill. Dec. 628 (Ill. 1985), with society's interests in seeing its public policies carried out, thereby preventing an employer for firing an employee for "any reason" when that reason contravenes public policy. See Fellhauer v. City of Geneva, 142 Ill. 2d 495, 568 N.E.2d 870, 876, 154 Ill. Dec. 649 (Ill. 1991). Originally intended to be a narrowly applied, retaliatory discharge, through debate as to what constitutes "public policy" has expanded to the point where some courts have expressed concern that the cause of action improperly limits the employment at will doctrine. See, e.g., Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876, 881-86, 52 Ill. Dec. 13 (Ill. 1981) (Ryan, J., dissenting); Kavanagh v. KLM Royal Dutch Airlines, 566 F. Supp. 242, 244 (N.D. Ill. 1993) (Leighton, J.). It is this Court's responsibility, however, to permit the cause of action where, in the Court's view, it would be permitted by the Illinois Supreme Court.

 To state a cause of action for retaliatory discharge, a plaintiff must allege that he was dismissed and that the dismissal was in contravention of a "clearly mandated public policy." Fellhauer, 568 N.E.2d at 875. The question of whether an employer's conduct violated "clearly mandated public policy" has become the central question regarding the tort's applicability. The Illinois Supreme Court tried to limit what constitutes public policy by stating that a claim for retaliatory discharge must involve subject matter that strikes "at the heart of a citizen's social rights, duties, and responsibilities." Palmateer, 421 N.E.2d at 878-79.

 In practice, the tort is applied somewhat categorically. One category of conduct sought to be protected as "clearly mandated public policy" is an employee's reporting a fellow employee's crimes or possible crimes to law enforcement authorities. See Palmateer, 421 N.E.2d at 879-80. This category has been interpreted by several courts to include an employee's reporting a fellow employees' crimes or possible crimes to his employer, but not to law enforcement authorities. See Belline v. K-Mart Corp., 940 F.2d 184 (7th Cir. 1991); Parr v. Triplett, 727 F. Supp. 1163 (N.D. Ill. 1989); Hicks v. Clyde Fed. Sav. & Loan Ass'n, 722 F. Supp. 501 (N.D. Ill. 1989); Petrik v. Monarch Printing Corp., 111 Ill. ...


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