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Buckner

April 15, 1998

JACK L. BUCKNER, APPELLANT V. ATLANTIC PLANT MAINTENANCE, INC., ET AL. (JAMES L. O'BRIEN, APPELLEE


The opinion of the court was delivered by: Justice Bilandic

Agenda 10

January 1998.

delivered the opinion of the court:

The primary issue presented in this appeal is whether a plaintiff may bring a retaliatory discharge action against the employee or agent who, on behalf of the plaintiff's former employer, discharged the plaintiff in alleged violation of public policy. We hold that the limited tort of retaliatory discharge recognized by this court in Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978), should not be expanded to allow claims against such parties.

FACTS

The plaintiff, Jack L. Buckner, filed a four-count complaint against Atlantic Plant Maintenance, Inc. (Atlantic), James L. O'Brien (O'Brien), Sedgwick James of Illinois, Inc. (Sedgwick), and Patrick J. Holden (Holden) in the circuit court of Cook County on February 28, 1995. The plaintiff alleged that he was periodically employed by Atlantic as a millwright at LaSalle Nuclear Power Station on and prior to October 13, 1993. The plaintiff further alleged that he suffered a work-related injury on September 23, 1993, while employed by Atlantic. Counts I and II of the complaint were directed at Atlantic and O'Brien. Count I charged that Atlantic and O'Brien terminated the plaintiff's employment on October 23, 1993, in retaliation for the plaintiff's "intention to pursue and his pursuit of a certain workers' compensation claim." Count II realleged the allegations of count I and sought punitive damages from Atlantic and O'Brien. Counts III and IV were directed against Sedgwick and Holden. Count III charged that Sedgwick and Holden conspired with Atlantic and O'Brien to deny the plaintiff his workers' compensation benefits by "falsely informing plaintiff on November 3, 1993, that he would receive no benefits because he failed to show up for light duty work at Atlantic and `unilaterally elected to keep yourself off the job.' " Count IV sought punitive damages from Sedgwick and Holden.

Atlantic filed an answer admitting that it had been the plaintiff's employer. As an affirmative defense, Atlantic alleged that it had "laid off" the plaintiff as part of a "reduction in force."

O'Brien filed a motion to dismiss the plaintiff's complaint against him pursuant to section 2-619(a) of the Code of Civil Procedure (735 ILCS 5/2-619(a) (West 1996)). O'Brien attached his affidavit to the motion. In that affidavit, O'Brien averred that he was the executive vice president of Consulting Services of Frankfort, Illinois, Inc., and that, in October 1993, he performed consulting services for Atlantic regarding work-place safety. O'Brien further stated that the plaintiff was not an employee of Consulting Services of Frankfort, Illinois, Inc., and that O'Brien was not an employee of Atlantic. Finally, O'Brien averred that he had no authority to hire or discharge employees of Atlantic in October of 1993. Based upon this affidavit, O'Brien's motion sought dismissal of the complaint against him on the ground that he was not the plaintiff's employer.

The plaintiff filed a response to O'Brien's motion to dismiss, accompanied by the affidavits of the plaintiff and his counsel. The plaintiff's affidavit stated that O'Brien worked out of Atlantic's office at the power plant, O'Brien gave safety lectures at the job site on behalf of Atlantic, and O'Brien, on several occasions, drove the plaintiff from the job site to see physicians for his work-related injury. The affidavit of the plaintiff's counsel stated that he possessed a letter written by O'Brien to one of the plaintiff's treating physicians in which O'Brien called himself "Safety Supervisor, Atlantic Plant Maintenance," and requested information about the plaintiff's medical condition. On the basis of these affidavits, the plaintiff argued that he had sufficiently alleged that O'Brien had the authority to discharge the plaintiff on behalf of Atlantic. The plaintiff also cited two decisions of the Second District of the appellate court which held that a plaintiff may bring a retaliatory discharge action against a former supervisor individually, in addition to their former employer.

O'Brien filed a reply memorandum in support of his motion to dismiss. First, O'Brien pointed out that the conspiracy count of the plaintiff's complaint, count III, was not directed at O'Brien and contained no prayer for relief against O'Brien. With regard to the retaliatory discharge claim, O'Brien argued that the plaintiff did not allege that O'Brien had been his supervisor. Further, O'Brien argued, the First District of the appellate court had held, contrary to the Second District, that a retaliatory discharge action may not be brought against parties other than the plaintiff's former employer.

The trial court granted O'Brien's motion to dismiss. The court's order first allowed the plaintiff leave to amend count III of his complaint instanter to include O'Brien in the prayer for relief under the conspiracy theory. The order then dismissed counts I, II and III as they pertained to O'Brien.

The plaintiff appealed to the appellate court. The appellate court, following the precedent of the First District, held that the only proper defendant in a retaliatory discharge action is the plaintiff's former employer, not the plaintiff's former supervisors. The court declined to follow the contrary holdings of the Second District. Accordingly, because the complaint did not allege that O'Brien had been the plaintiff's employer, the appellate court affirmed the dismissal of the retaliatory discharge claim against O'Brien. The appellate court also affirmed the dismissal of the conspiracy claim against O'Brien. 287 Ill. App. 3d 173.

We accepted the plaintiff's petition for leave to appeal to resolve the conflict in the appellate court on the retaliatory discharge issue. 166 Ill. 2d R. 315(a).

ANALYSIS

I. Retaliatory Discharge

We must decide whether a plaintiff may bring a retaliatory discharge action against the employee or agent of their former employer who effected the discharge on behalf of the employer. This court has not yet addressed this issue. As noted, the decisions of our appellate court on this issue are conflicting. The First District, in a line of cases beginning with Morton v. Hartigan, 145 Ill. App. 3d 417 (1986), has held that the only proper defendant in a retaliatory discharge action is the plaintiff's former employer. Morton, 145 Ill. App. 3d at 421-22; Balla v. Gambro, Inc., 203 Ill. App. 3d 57, 63 (1990), rev'd on other grounds, 145 Ill. 2d 492 (1991); Motsch v. Pine Roofing Co., 178 Ill. App. 3d 169, 176-78 (1989). The court in Morton looked to this court's precedent which, it determined, required a narrow scope for the tort of retaliatory discharge. The Morton court concluded that allowing a retaliatory discharge action to be brought against a party other than the former employer would unduly expand the tort. Morton, 145 Ill. App. 3d at 421-22; see also Balla, 203 Ill. App. 3d at 63; Motsch, 178 Ill. App. 3d at 176-77.

The Second District of our appellate court has reached a contrary conclusion. In Fellhauer v. City of Geneva, 190 Ill. App. 3d 592, 600-02 (1989), rev'd on other grounds, 142 Ill. 2d 495 (1991), the court declined to follow Morton and held that an action for retaliatory discharge may be brought against not only the plaintiff's former employer, but also the employee or agent who performed the discharge. The Fellhauer court reasoned that, under principles of agency law, where the acts of an agent render the principal liable, the agent is also liable. The court further determined that holding the "active wrongdoer" liable, in addition to the employer, for retaliatory discharge would promote the deterrent goal of the tort. Fellhauer, 190 Ill. App. 3d at 602; see also Bragado v. Cherry Electrical Products Corp., 191 Ill. App. ...


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