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Graham v. Commonwealth Edison Co.

December 29, 2000


Appeal from the Circuit Court of Cook County. No. 96-L-10100 Honorable David R. Donnersberger and Susan G. Fleming, Judges Presiding.

The opinion of the court was delivered by: Justice Theis

Commonwealth Edison and David Andrews *fn1 (ComEd) appeal from an order denying their motion to dismiss pursuant to section 2-615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 1998)) on the retaliatory discharge count, which is appeal number 1-99- 0345. James Graham (Graham) appeals from an order dismissing his intentional infliction of emotional distress count under section 2-615 of the Code, which is appeal number 1-99-3441.

Graham filed his third amended complaint against ComEd, alleging defamation, intentional infliction of emotional distress, negligent infliction of emotional distress and retaliatory discharge. ComEd filed a motion to dismiss Graham's complaint pursuant to section 2-615, alleging that the complaint failed to state a cause of action upon which relief could be granted.

The trial court granted the motion with prejudice with respect to the defamation and negligent infliction of emotional distress counts. ComEd sought an interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308) and the circuit court certified the retaliatory discharge question: whether plaintiff has stated a claim for retaliatory discharge where plaintiff has not been terminated and actually continues to work for the defendant, but where the plaintiff has allegedly been demoted. This court then accepted the question for appeal number 1-99-0345 under Supreme Court Rule 308.

The circuit court denied ComEd's motion for interlocutory appeal with respect to the intentional infliction of emotional distress claim. ComEd then renewed its motion, which was denied. ComEd brought a second motion to dismiss the intentional infliction of emotional distress claim pursuant to section 2-615, which was granted. Graham then appealed from that final order, constituting the second appeal here, number 1-99-3441. These appeals were then consolidated. We now reverse on both appeals. The retaliatory discharge claim is dismissed, and we remand the intentional infliction of emotional distress claim to the trial court.

Graham and ComEd present three issues in these consolidated appeals: (1) whether count IV of Graham's third amended complaint states a cause of action for retaliatory discharge where Graham continues to work for ComEd but has been discharged from his managerial position; (2) whether, if Graham was not discharged from his position, Graham has adequately pleaded retaliatory demotion and whether Illinois law recognizes a cause of action for retaliatory demotion; and (3) whether count II of Graham's third amended complaint states a cause of action for intentional infliction of emotional distress where Graham alleged that ComEd abused its position of power over Graham and engaged in a campaign of harassment against him because Graham reported that ComEd was violating nuclear safety regulations.

Graham's complaint against ComEd alleges that he was demoted after making complaints concerning safety issues and statutory violations at ComEd's Dresden nuclear power station. In his complaint, Graham states that he began working for ComEd in July 1983 as a general clerk in the ComEd data processing department. Late that year, Graham was promoted to the position of nuclear plant operator and, in 1988, to health physics technician. At all times, he "performed his job duties and responsibilities in an above average manner." In 1995, Graham was promoted to acting foreman and lead radiation technician where he had managerial and supervisory duties.

In December 1995, the United States Nuclear Regulatory Commission (NRC) began an independent investigation into allegations of safety violations, as well as harassment, intimidation and discrimination at the Dresden station. Graham reported safety violations to his supervisors, ComEd's quality first department, which was designed to handle employee concerns anonymously, and finally to the NRC in December 1995 and January 1996. Shortly thereafter, ComEd began its own independent investigation concurrently with the NRC investigation. The NRC instructed ComEd to immediately report any information resulting from its internal investigation to the NRC. According to the allegations of the complaint, at the time ComEd joined the investigation, it was aware of who was responsible for the vandalism and harassment incidents and knew Graham was not one of those individuals.

ComEd then began the investigation into Graham. During the investigation, ComEd revealed to Graham that it knew he had made anonymous complaints to the quality first department and then gave Graham the choice of resigning or facing prosecution for harassing and intimidating co-workers. Graham refused to resign and was then escorted out of the building on a two-week suspension. Graham later met with the NRC investigators, who stated that they had no knowledge of any allegations against Graham and had never even heard his name before. Twenty of Graham's co-workers then started a letter-writing campaign, denying the allegations against Graham and praising his work performance and people skills.

ComEd then began interviewing over 100 employees concerning the allegations against Graham. ComEd, the complaint alleges, had knowledge that these allegations against Graham were false. In the interviews, ComEd made several allegedly defamatory statements and then requested that the interviewees confirm their knowledge of this behavior. The statements alleged that Graham planted radioactive material outside the posted area for such material and that he falsified documents. ComEd stated that Graham threatened co-workers and supervisors with physical violence and that he had "beaten people up." The statements also alleged that Graham followed a woman co-worker home one evening and threatened her with physical violence and had sexually harassed women co-workers. Additional allegations included that Graham damaged cars and other property at the Dresden station, interfered with ComEd's investigation by telling employees not to answer the investigator's questions or otherwise cooperate and that Graham and another employee were the leaders of a gang called the "Magnificent Seven." During the investigation, Graham and another co-worker were reassigned to an abandoned facility, the Mazon facility, for almost two months. At that facility, they had to remain in one room for the entire day with virtually no work to do.

As a result of these allegations, Graham alleges he has suffered severe mental and emotional distress. He spoke with someone at the ComEd employee assistance program who referred him to a therapist upon his request. In February 1996, Graham began seeing a psychologist. Graham also complained of physical manifestations of this job-related distress; he suffered from headaches, stomach discomfort, lack of sleep, and loss of appetite and saw a dermatologist for stress-related acne. Graham repeatedly informed ComEd of this distress and also that the stress was ruining his marriage.

In April 1996, ComEd finished its investigation and found the allegations against Graham to be unsubstantiated. However, ComEd never informed its employees that the charges against Graham were false. ComEd then transferred Graham back to the Dresden station, not as acting foreman, but as a nuclear plant operator. Graham requested to be reinstated to his former position, but was told he had no choice in the matter. The new position resulted in a pay cut, a demotion and no supervisory or managerial duties. He was then transferred to the radiation department as a health physics technician. Since then, he has not been promoted or given any meaningful job responsibilities.

In count II of the complaint, Graham asserts a claim for intentional infliction of emotional distress. Graham alleges that the 7½ weeks spent in the abandoned facility with no work to do caused Graham to suffer extreme emotional distress. Further, ComEd's making and publishing of defamatory statements with either knowledge or reckless disregard of their falsity caused Graham emotional distress. The complaint alleges that the conduct was extreme and outrageous, ComEd abused its position of power over Graham and the investigation was solely for the purpose of harassing Graham because he reported safety violations to the NRC. Graham also alleges that ComEd knew Graham was suffering from severe emotional distress and knew that he was seeing a therapist. Graham alleged he suffered physical injury as a result of ComEd's conduct, including physical illness, marital problems, humiliation, loss of confidence, loss of friends and extensive damage to his professional reputation.

In count IV, Graham asserts a claim for retaliatory discharge. Graham alleges he was discharged from his managerial position, despite his request to return to his previous position, in retaliation for making complaints regarding safety violations to ComEd and the NRC. His right to make safety complaints is protected under the Energy Reorganization Act (42 U.S.C.A. §5851 et seq. (West 1995)), which is a clear public policy. As a result of his discharge, Graham alleges he suffered injury, including loss of back pay, lost future earnings, training, loss of bonuses, compensatory and punitive damages.

Both counts of the complaint at issue here were dismissed pursuant to a section 2-615 motion; thus, the only question before this court is whether the dismissed counts state causes of action. Welsh v. Commonwealth Edison Co., 306 Ill. App. 3d 148, 150-51, 713 N.E.2d 679, 681 (1999). A cause of action will not be dismissed on the pleadings unless it clearly appears that the plaintiff cannot prove any set of facts that will entitle it to relief. Board of Directors of Bloomfield Club Recreation Association v. Hoffman Group, Inc., 186 Ill. 2d 419, 424, 712 N.E.2d 330, 333 (1999); Vernon v. Schuster, 179 Ill. 2d 338, 344, 688 N.E.2d 1172, 1175 (1997). In ruling on a section 2-615 motion to dismiss, the court must accept as true all well-pleaded facts in the complaint as well as all reasonable inferences that can be drawn therefrom. Sherman v. Kraft General Foods, Inc., 272 Ill. App. 3d 833, 835, 651 N.E.2d 708, 710 (1995). Therefore, in reviewing the trial court's ruling on defendant's section 2-615 motions to dismiss, we apply the de novo standard of review. Board of Directors, 186 Ill. 2d at 424, 712 N.E.2d at 333.

The first issue is whether Graham's third amended complaint sufficiently pleaded a cause of action for retaliatory discharge. Graham alleges that he was discharged from his managerial position in retaliation for making complaints about safety violations. He contends that his right to make safety complaints is protected by the Energy Reorganization Act and his discharge therefore violates a clear mandate of public policy. ComEd responds that Graham must allege an ...

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