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02/14/95 DAVID SHERMAN v. KRAFT GENERAL FOODS

February 14, 1995

DAVID SHERMAN, PLAINTIFF-APPELLANT,
v.
KRAFT GENERAL FOODS, INC., DEFENDANT-APPELLEE.



Appeal from Circuit Court of Champaign County. No. 93L1137. Honorable John G. Townsend, Judge Presiding.

As Corrected July 18, 1995.

Honorable Robert W. Cook, J., Honorable James A. Knecht, P.j., Honorable John T. McCULLOUGH, J., Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Plaintiff, David Sherman, appeals an order of the trial court dismissing his third-amended complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-615). The complaint alleged defendant, Kraft General Foods, Inc. (Kraft), terminated him from his employment in retaliation for reporting to Kraft an asbestos-related hazard in the workplace. On appeal, plaintiff contends he sufficiently pleaded (1) Kraft terminated him in retaliation for his activities; and (2) the termination violated a clearly mandated public policy. We agree and reverse.

Plaintiff made the following allegations in his third-amended complaint. He worked for Kraft from October 14, 1986, to May 12, 1992, at its facility in Champaign. While at Kraft, plaintiff became aware of the existence of a white dusty material in his work area. Plaintiff inquired as to the composition of the material, and John Getchel, "Plaintiff's safety representative," told him it may be asbestos. According to the complaint, the position of safety representative at Kraft includes the following duties:

"receiving information from Defendant's employees regarding the safety and health conditions of the safety representative's assigned departments; remedying any safety or health hazards within the safety representative's designated department; and further reporting to Defendant any safety or health hazards that the safety representative is unable to remedy alone."

Plaintiff himself had previously been "appointed" safety representative. On May 11, 1992, plaintiff verbally reported the location of the material to Getchel, "the individual to whom Plaintiff was to report any unsafe conditions or health hazards within Plaintiff's work area." Neither Getchel nor any other Kraft representatives informed plaintiff of any additional procedures necessary to report asbestos-related safety and health hazards.

Plaintiff told Getchel he intended to retrieve a piece of exposed and deteriorating insulation. After informing Getchel of his intentions, plaintiff retrieved a piece of the insulation so he could report the hazard to Kraft or, if necessary, to the Occupational Health and Safety Administration (OSHA). After plaintiff retrieved the insulation, Getchel told him to give it to plaintiff's immediate supervisor, Kirk Luna. Getchel also said Kraft would not want any asbestos-related hazards reported. Since Luna was not on duty on May 11, 1992, plaintiff sealed the insulation in a plastic bag and placed it in his toolbox with the intention of giving it to Luna the following day and, if necessary, to OSHA. On May 12, 1992, plaintiff's toolbox was confiscated, and the material was tested and determined to contain asbestos. On May 14, 1992, Kraft terminated plaintiff.

In granting Kraft's motion to dismiss, the trial court held that plaintiff pleaded a valid public policy. However, the court held that plaintiff failed to sufficiently plead he was terminated in retaliation for his activities. Specifically, the court stated:

"The pleading describes that [Getchel] works 'at' Defendant's plant. The pleading describes duties he apparently has. There is no language stating that this position as 'Plaintiff's Safety Representative,' is as a result of some action by, or relationship of Getchel's with the Defendant. *** The pleading does not indicate whether the safety representative position is a function of some informal relationship among employees, a union position, a government position, or a representative of the Defendant. Were Getchel's functions assigned by or conducted on behalf of the Defendant, it certainly would be simple enough to state that in a pleading. None of the efforts at pleading by the Plaintiff have done this. The Court is left to conclude that this omission must be because it cannot be pleaded that Getchel's position as 'Plaintiff's Safety Representative,' is as a consequence of some appointment, or empowerment, or function on behalf of the defendant."

Dismissal of a cause of action on the pleadings is only proper where it is clearly apparent that plaintiff can prove no set of facts that would entitle him to recover. ( Illinois Graphics Co. v. Nickum (1994), 159 Ill. 2d 469, 483, 639 N.E.2d 1282, 1289, 203 Ill. Dec. 463.) In ruling on a section 2-615 motion to dismiss, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences that can be drawn therefrom. ( Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill. 2d 1, 9, 607 N.E.2d 201, 205, 180 Ill. Dec. 307.) We review the ruling on a motion todismiss de novo. Toombs v. City of Champaign (1993), 245 Ill. App. 3d 580, 583, 615 N.E.2d 50, 51, 185 Ill. Dec. 755.

Illinois continues to adhere to the employment-at-will doctrine, where a noncontracted employee serves at the employer's will and can be discharged for any reason or no reason. ( Zimmerman v. Buchheit of Sparta, Inc. (1994), 163 Ill. 2d 29, 32, 645 N.E.2d 877, 879, 206 Ill. Dec. 625; Hartlein v. Illinois Power Co. (1992), 151 Ill. 2d 142, 159, 601 N.E.2d 720, 728, 176 Ill. Dec. 22.) The Supreme Court of Illinois created a limited exception to this general rule by recognizing the tort of retaliatory discharge for employees discharged for exercising their rights under the Workers' Compensation Act (Act) (see Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.). ( Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 181-82, 384 N.E.2d 353, 357, 23 Ill. Dec. 559.) Following Kelsay, the supreme court held "'[a] plaintiff states a valid claim for retaliatory discharge only if [he] alleges that [he] was (1) discharged; (2) in retaliation for [his] activities; and (3) that the discharge violates a clear mandate of public policy.'" Zimmerman, 164 Ill. 2d at 35, 645 N.E.2d at 880, quoting Hinthorn v. Roland's of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911, 116 Ill. Dec. 694.

Plaintiff first argues he sufficiently pleaded he was discharged in retaliation for investigating and reporting asbestos hazards. In order to satisfy this requirement, plaintiff must necessarily allege Kraft had notice of his activities before terminating him. The trial court held plaintiff did not satisfy this requirement because he did ...


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