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HAMROS v. BETHANY HOMES & METHODIST HOSP. OF CHICA

August 10, 1995

LOUIS J. HAMROS, Plaintiff,
v.
BETHANY HOMES AND METHODIST HOSPITAL OF CHICAGO, an Illinois not-for-profit corporation, and BARRY KURCZ, Defendant.



The opinion of the court was delivered by: ROBERT W. GETTLEMAN

 Plaintiff Louis J. Hamros brings this seven count complaint against Bethany Homes and Methodist Hospital of Chicago (the "Hospital") and Barry Kurcz, alleging violations of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2615(a), the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., the Age Discrimination Act of 1967, and also alleging state law claims of retaliatory discharge, intentional infliction of emotional distress, interference with contract, and defamation. The court's jurisdiction is invoked pursuant to the Family and Medical Leave Act, 29 U.S.C. § 2617(a)(2), 28 U.S.C. §§ 1331 and 1343, as well as the doctrine of supplemental jurisdiction codified in 28 U.S.C. § 1367. Both the Hospital and Kurcz have brought motions to dismiss Counts IV, V and VI for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the motions are granted in part and denied in part.

 FACTS

 Plaintiff was hired by the Hospital on April 22, 1974, as a clerk/technician in radiology. He alleges that he was transferred to the pharmacy department in 1977, eventually becoming a pharmaceutical buyer. He further alleges that he established a good work record at the Hospital and received promotions, increased responsibilities, merit pay raises, and compliments on the quality of his work from his supervisors and fellow employees. He remained a full time employee of the Hospital until June 21, 1994, when he was fired.

 On July 5, 1994, plaintiff's doctor wrote a medical note releasing him to return to work on July 18, 1994. Plaintiff's wife delivered a copy of that note to the Hospital. On July 18, plaintiff was still recovering, so he planned to return to work the start of the following week. On July 21, plaintiff's wife was called at her job, and told to come in and pick up plaintiff's effects and COBRA papers because he had been fired one month earlier, on June 21, 1994.

 As a result of his being terminated, plaintiff claims to have lost wages, employment benefits, and suffered embarrassment, humiliation, emotional distress, and severe psychological pain.

 STANDARD OF REVIEW

 A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). When deciding a motion to dismiss, the court shall accept as true all the plaintiff's well pleaded factual allegations and otherwise liberally construe the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1979). In addition, the court must give the plaintiff the benefit of every reasonable inference that may be drawn from the facts. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981).

 DISCUSSION

 Count IV--Retaliatory Discharge

 In Count IV of his amended complaint, plaintiff alleges that Illinois has a public policy that employees not be retaliated against for attempting to exercise their rights under the Family and Medical Leave Act ("FMLA"). Plaintiff further alleges that the public policy is expressed in the act itself, and that by firing him the Hospital retaliated against him for exercising his rights under the act.

 The Hospital has moved to dismiss Count IV, arguing that because the FMLA does not enunciate clearly mandated Illinois public policy, and because plaintiff has an adequate remedy for the retaliation under the FMLA, the tort of retaliatory discharge should not be expanded to include plaintiff's claim.

 It is well settled that in Illinois an employee at will may be terminated at any time for any reason or none at all. Martin v. Federal Life Ins. Co., 109 Ill. App. 3d 596, 440 N.E.2d 998, 65 Ill. Dec. 143 (1982). Illinois recognizes a narrow exception to this employment at will doctrine, in those cases where an employee can demonstrate that he was terminated in retaliation for his actions, if the termination contravenes a clear mandate of public policy. Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 23 Ill. Dec. 559, 384 N.E.2d 353 (1978); Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876, 52 Ill. Dec. ...


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