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09/21/95 HELEN WEBB v. COUNTY COOK AND EDWARD J.

September 21, 1995

HELEN WEBB, PLAINTIFF-APPELLANT,
v.
COUNTY OF COOK AND EDWARD J. ROSEWELL AS COUNTY TREASURER FOR THE COUNTY OF COOK, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Patrick E. McGann, Judge Presiding.

As Corrected October 5, 1995.

The Honorable Justice S. O'brien delivered the opinion of the court: Hoffman, P.j. and Cahill, J. concur.

The opinion of the court was delivered by: O'brien

JUSTICE S. O'BRIEN delivered the opinion of the court:

Plaintiff, Helen Webb, appeals from the February 4, 1994, order of the trial court granting defendants' motion for summary judgment on her complaint alleging retaliatory failure to rehire or recall in violation of the Illinois Workers' Compensation Act (the "Act"). (Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq. (1989) (now 820 ILCS 305/1 et seq. (West 1994)).) We affirm.

The following facts are undisputed. Plaintiff, a regular employee of the County Treasurer's Office, sustained a work-related injury on March 19, 1990. She was placed on an approved disability leave and began receiving workers' compensation benefits. On September 11, 1990, after some confusion regarding her ability and willingness to return to work, plaintiff was dismissed. Following her dismissal, plaintiff made several written and oral requests to be reinstated to her former position. Defendants refused to rehire plaintiff.

On October 24, 1991, plaintiff filed a complaint against her employer and Cook County for retaliatory discharge under section 4(h) of the Illinois Workers' Compensation Act. (Ill. Rev. Stat. 1991, ch. 48, par. 138.4(h) (now 820 ILCS 305/4(h) (West 1994)).) The original complaint was dismissed as barred by the one-year statute of limitations in the Tort Immunity Act. (Ill. Rev. Stat. 1991, ch. 85, par. 8-101 (now 745 ILCS 10/8-101(1994)).) Plaintiff then amended her complaint three times. Count I of the third amended complaint alleged retaliatory failure to rehire or recall. Count II alleged breach of an employment contract. Defendants filed a section 2-615 motion to dismiss on both counts. (Ill. Rev. Stat. 1991, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1994)).) The trial court denied defendants' motion as to count I and granted it as to count II. Defendants thereafter filed a motion for summary judgment as to count I. The trial court granted the motion and this appeal followed.

Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991. ch. 110, par. 2-1105(c) (now 735 ILCS 5/2-1005(c) (West 1994)).) On appeal, plaintiff argues that summary judgment was improper because the reason for her termination is in dispute and relevant to a determination of whether her employer's refusal to rehire or recall violated the Act. Defendants counter that they were entitled to summary judgment as a matter of law because plaintiff cannot state a cause of action for retaliatory failure to rehire or recall under section 4(h) (now 820 ILCS 305/4(h) (West 1994)) of the Act. Because we find proper construction of section 4(h) to be dispositive of the case we address the latter issue first.

The relevant portion of section 4(h) provides that:

"it shall be unlawful for any employer * * * to discharge or threaten to discharge, or to refuse to rehire or recall * * * an employee because of the exercise of his or her rights or remedies granted to him or her by this Act."

(Ill. Rev. Stat. 1991, ch. 48, par. 138.4(h) (now 820 ILCS 305/4(h) (West 1994)).) We find implicit in this statute a threshold requirement that a claim for retaliatory failure to rehire or recall be based upon the reasonable expectation of the employee that he or she will be permitted to return. This view is supported by Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 533 N.E.2d 1, 127 Ill. Dec. 383.

In Motsch a roofer brought action against his seasonal employer under the "refuse to rehire or recall" clause of section 4(h). At trial, plaintiff introduced evidence that defendant had never complained about his performance but had previously made him a foreman. In light of the foregoing evidence, the Motsch court held the clause applicable to industries that seasonally terminate and rehire employees. (178 Ill. App. 3d at 175, 533 N.E.2d at 5.) Thus justified, the Motsch holding provides tacit support for a threshold requirement that a claim for retaliatory failure to rehire or recall be based upon the reasonable expectation of rehire or recall. Defendant would therefore be entitled to summary judgment if plaintiff could not establish this element of the cause of action. Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 543 N.E.2d 1304, 1307, 135 Ill. Dec. 557.

An employee who has been fired generally can have no reasonable expectation of rehire because courts will not compel an employer to reinstate a discharged employee absent a statutory requirement of reinstatement. (See Hess v. Clarcor, Inc. (1992), 237 Ill. App. 3d 434, 603 N.E.2d 1262, 1274-75, 177 Ill. Dec. 888.) The reason for this is twofold. First, courts are not well suited to enforce a continuing relationship between parties who have become hostile to one another. ( Kurle v. Evangelical Hospital Association (1980), 89 Ill. App. 3d 45, 54, 411 N.E.2d 326, 332-33, 44 Ill. Dec. 357.) And second, money damages are ordinarily adequate compensation for the loss of employment, even given the possible attendant stigma or difficulties in finding new work. ( Sampson v. Murray (1974), 415 U.S. 61, 92 n. 68, 39 L. Ed. 2d 166, 187-88 n. 68, 94 S.Ct. 936, 953 n. 68.)

The Illinois Workers' Compensation Act contains no requirement of rehire, but merely creates a cause of action for which money damages would ordinarily be adequate compensation. Absent an independent statutory basis for an expectation of rehire, therefore, an employee who is fired in violation of the Workers' Compensation Act cannot establish the threshold requirement of a retaliatory refusal to rehire claim. Accordingly, the date of firing is a flashpoint after which a former employee may generally only state a cause of action for retaliatory discharge. In this context, an employee shall be deemed fired when, in the course of regular or seasonal employment, the ...


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