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Veazey v. LaSalle Telecommunications

October 30, 2002

DARRYL N. VEAZEY, PLAINTIFF-APPELLANT,
v.
LASALLE TELECOMMUNICATIONS, INC., DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY HONORABLE LYNN M. EGAN JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Hoffman

UNPUBLISHED

The plaintiff, Darryl N. Veazey, filed a three-count complaint against the defendant, LaSalle Telecommunications, Inc. (LaSalle), asserting causes of action for retaliatory discharge, civil conspiracy, and negligent spoliation of evidence. LaSalle moved to dismiss each of the counts pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2000)). The circuit court granted LaSalle's motion, and the plaintiff filed a timely notice of appeal. For the reasons which follow, we affirm.

The plaintiff's complaint alleges as follows. The plaintiff was employed by LaSalle from 1989 until October 25, 1996. In September 1996, the plaintiff's immediate superior, Ralph Newcomb, received a threatening message on his voice mail. Several individuals for whom the message was played believed that the voice on the message was that of the plaintiff. The matter was reported to the police. Approximately one month later, a female caller left a message on Newcomb's voice mail threatening Newcomb's wife.

On October 22, 1996, the plaintiff was summoned to LaSalle's regional office and questioned regarding the threatening messages by Mike Mason, LaSalle's Customer Fulfillment Manager, and Jack Burke, who was identified to the plaintiff as a "LaSalle troubleshooter." The plaintiff denied leaving any threatening messages on Newcomb's voice mail but was, nevertheless, ordered to read a transcript of the threatening message so that a recording of his voice could be made for comparison purposes. The plaintiff refused and was suspended from his job without pay.

The plaintiff next met with Mason and Burke on October 25, 1996, and was again ordered to provide a recording of his voice reading a transcript of the threatening message. When the plaintiff refused, his employment with LaSalle was terminated.

The plaintiff filed a three-count complaint against LaSalle. Count I is a claim for retaliatory discharge, asserting that the plaintiff was fired "in retaliation for his invoking his rights against self incrimination as protected by the Illinois and United States Constitutions." Count II is a claim for civil conspiracy, charging that Mason and Burke conspired to terminate the plaintiff because he "was Black and because he refused to leave incriminating voice mail messages ***." Count III is a claim for negligent spoliation of evidence, alleging that LaSalle has lost, misplaced or destroyed certain evidentiary materials, including the plaintiff's personnel file and micro cassette recordings of the threatening voice mail messages left on Newcomb's voice mail, making it "more difficult for him [the plaintiff] to succeed in his litigation to recover the damages to which he is entitled."

LaSalle moved to dismiss each of the counts of the plaintiff's complaint for failure to state causes of action upon which relief might be granted. Specifically as to count I, LaSalle argued that the plaintiff failed to state a claim for retaliatory discharge because he had not and could not allege that his termination was in violation of any clearly mandated public policy. In moving to dismiss count II, the plaintiff's civil conspiracy claim, LaSalle argued that it could not be held liable for conspiring with its own agents, Mason and Burke, as there can be no conspiracy between a principal and its agent. LaSalle further argued that the plaintiff could not recover against it in a common law action for an alleged conspiracy to violate his civil rights. As to count III, LaSalle argued that, since the plaintiff cannot recover against it on either count I or count II of his complaint, he cannot satisfy the causation element of an action for negligent spoliation of evidence.

The circuit court granted LaSalle's motion and dismissed all three counts of the plaintiff's complaint with prejudice. This appeal followed.

Because this matter was disposed of at the trial level on the defendant's motion to dismiss pursuant to section 2-615 of the Code, the only question before this court is whether the dismissed counts state causes of action upon which relief can be granted. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 504-05, 565 N.E.2d 654 (1990). The issue presented is one of law, and our review is de novo. Metrick v. Chatz, 266 Ill. App. 3d 649, 651-52, 639 N.E.2d 198 (1994).

In determining whether sufficient facts are stated in the complaint which, if established, could entitle the plaintiff to relief, we must take the well-pled facts in the complaint as true and draw all reasonable inferences from those facts which are favorable to the plaintiff. Ziemba v. Mierzwa, 142 Ill. 2d 42, 46-47, 566 N.E.2d 1365 (1991). However, conclusions of law or fact contained within the complaint will not be taken as true unless supported by specific factual allegations. Ziemba, 142 Ill. 2d at 47.

The tort of retaliatory discharge is an exception to the general rule that "at-will" employment is terminable at any time for any or no cause. Palmateer v. International Harvester Co., 85 Ill. 2d 124, 128, 421 N.E.2d 876 (1981). In order to recover upon a claim of retaliatory discharge, a plaintiff must establish that he was discharged in retaliation for his activities and that the discharge violated a clear mandate of public policy. Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 160, 601 N.E.2d 720 (1992). In this case, the plaintiff has pled both that he was discharged from his employment with LaSalle and that his discharge was as a consequence of his activities, namely, refusing to read a transcript of the threatening message left on Newcomb's voice mail. The question is whether the facts as alleged establish that the plaintiff's discharge was in violation of a clear mandate of public policy.

The plaintiff argues that the public policy violated by his discharge is the protection of the privilege against self-incrimination guaranteed by both the Fifth amendment to the United States Constitution (U.S. Const., amend. V) and article I, section 10 of the Illinois Constitution (Ill. Const. 1970, art I, sec. 10). LaSalle argues that a voice exemplar, such as that requested of the plaintiff, is not a testimonial statement and, as such, neither the Federal nor the state constitutional privilege against self-incrimination protects a person from being required to give one. LaSalle further asserts that the privilege against self-incrimination acts as a restraint upon the government only, not a limitation upon the activities of a private party.

As a preliminary matter, we will address the plaintiff's contention that his complaint does not allege that he was directed to give a voice exemplar. The term "exemplar" is defined as "one that serves as a model or example." Webster's Third New International Dictionary 795 (1993). Interpreted in their light most favorable to the plaintiff, the allegations of the complaint assert nothing more than the fact that the plaintiff was directed to "provide a tape recording of his voice reading the transcript of the message allegedly left" on Newcomb's voice mail so that LaSalle "could compare it to the threatening message left for Mr. Newcomb", "ostensibly for the purpose of determining whether or not *** [his] denial of involvement was truthful". The plaintiff asserts that, pursuant to voice recording standards adopted by the American Board of Recorded Evidence, a voice exemplar must be taken by trained professionals in a controlled setting in order to be valid for comparison purposes. We are not concerned with the question of ...


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