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11/09/95 HENRY P. LEWELING v. SCHNADIG CORPORATION

November 9, 1995

HENRY P. LEWELING, PLAINTIFF-APPELLANT
v.
SCHNADIG CORPORATION, DEFENDANT-APPELLEE



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE WILLIAM J. LASSERS, JUDGE PRESIDING.

As Corrected. Released for Publication December 21, 1995. Petition for Leave to Appeal Denied January 31, 1996.

Presiding Justice Cousins delivered the opinion of the court: McNULTY, J., concurring and Gordon, J., specially concurring.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

On November 10, 1993, the plaintiff, Henry P. Leweling, filed a complaint against the defendant, Schnadig Corporation (Schnadig) for retaliatory discharge. In his complaint, plaintiff alleged that defendant terminated his employment because he insisted that defendant comply with an Interstate Commerce Commission (ICC) regulation that requires motor contract carriers to enter into written contracts with shippers.

On December 16, 1993, defendant filed a motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)). On March 3, 1994, the trial court granted defendant's motion to dismiss.

On appeal, plaintiff contends the trial court erred in dismissing his complaint for retaliatory discharge since he was fired for exercising legal rights protected by a clearly mandated public policy of Illinois.

BACKGROUND

Defendant is a Delaware corporation, with its principal place of business in Chicago, Illinois. It is engaged in the nationwide manufacture, distribution and sale of furniture. Defendant, in connection with the sale and distribution of furniture throughout the United States, regularly uses the services of motor carriers. Defendant hired plaintiff in August 1989 on an "at-will" basis, as director of traffic and distribution. Plaintiff's duties included, but were not limited to, selecting motor carriers used by defendant, monitoring their performance, monitoring their freight charges, and reviewing the arrangements by which they served defendant.

During his employment with defendant, plaintiff observed that defendant did not execute written, bilateral contracts with the interstate contract carriers, but instead was operating on the basis of oral agreements. Therefore, plaintiff advised defendant that Federal regulations, issued by the Interstate Commerce Commission mandated the execution of written, bilateral contracts when using interstate for-hire contract carriers. Plaintiff also advised defendant that if defendant used an interstate contract carrier without a written, bilateral contract, only the tariff rates filed with the ICC were the lawful rates that such carrier could charge defendant for transportation service, and not any rates based on an oral agreement.

Plaintiff prepared drafts of written, bilateral contracts for execution by defendant in connection with its use of interstate contract carriers and circulated the draft contracts for review and adoption by defendant's personnel, including plaintiff's supervisors. However, defendant informed plaintiff that it would neither agree to the execution of written, bilateral contracts with any of its for-hire interstate contract carriers, nor rely on any published tariff charges in paying for motor carrier services. Defendant fired plaintiff on the same day, without written notification of his discharge or any written explanation.

On November 10, 1993, plaintiff filed a complaint against defendant for retaliatory discharge. In the complaint, he alleged that the defendant discharged him in retaliation for plaintiff's insistence that defendant not violate Federal laws and regulations in the use of interstate motor carriers. Plaintiff further alleged that his termination violated the clear and strong policy of the United States in regulating for-hire motor carrier transportation as issued by the ICC.

On December 19, 1993, defendant filed a motion to dismiss, stating that plaintiff failed to state a claim for retaliatory discharge because the Federal Interstate Commerce Act (the Act]=ยง 10101 (a)(8)(1988).) does not reflect a clearly mandated public policy of the State of Illinois. Defendant also contended the statutory provision on which plaintiff relies does not apply to defendant because the provision regulates the conduct of carriers, not shippers', such as defendant. On March 3, 1994, the trial court granted defendant's motion to dismiss, stating that the acts alleged in the complaint were not sufficiently serious violations to give rise to the tort of retaliatory discharge.

We affirm.

OPINION

In considering a motion to dismiss, a reviewing court must accept as true all well-pleaded facts alleged in the complaint and all reasonable inferences that can be drawn from those facts. ( Wieseman v. Kienstra, Inc. (1992), 237 Ill. App. 3d 721, 722, 604 N.E.2d 1126, 178 Ill. Dec. 603; Eisenbach v. Esformes (1991), 221 Ill. App. 3d 440, 442, 582 N.E.2d 196, 163 Ill. Dec. 930; Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495, 499, 568 N.E.2d 870, 154 Ill. Dec. 649.) The granting of a motion to dismiss is ...


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