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Seeman v. Wes Kochel, Inc.

Court of Appeals of Illinois, Third District

September 19, 2016

WILLIAM R. SEEMAN, Plaintiff-Appellant,
WES KOCHEL, INC., Defendant-Appellee.

         Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Appeal No. 3-15-0640 Circuit No. 14-MR-1925 Honorable John Anderson, Judge, Presiding.

          JUSTICE McDADE delivered the judgment of the court, with opinion. Justice Holdridge specially concurred, with opinion.


          McDADE, JUSTICE.

         ¶ 1 Plaintiff, William R. Seeman, appeals from the trial court's order granting summary judgment for defendant, Wes Kochel, Inc. Plaintiff argues the court erred in granting defendant's motion for summary judgment because the court's ruling was not supported by the Volunteer Emergency Worker Job Protection Act (Volunteer Act) (50 ILCS 748/1 et seq. (West 2014)) or the common law and public policy. We affirm.

         ¶ 2 FACTS

         ¶ 3 Plaintiff filed a complaint that alleged two claims of retaliatory discharge. The first count alleged retaliatory discharge based on a violation of the Volunteer Act (id.). The second claim alleged retaliatory discharge based on the common-law theory that plaintiff's discharge was in contravention of public policy.

         ¶ 4 In count I of the complaint, plaintiff alleged that he was hired by defendant in July 2012. Plaintiff was also a volunteer firefighter for the Rockdale Fire Protection District (District). On the morning of January 15, 2014, plaintiff was scheduled to work for defendant. Before plaintiff's shift, he responded to a fire call, and afterwards he reported for his shift. Wes Kochel, a relative of defendant, [1] informed plaintiff that his employment with defendant had been terminated for being tardy. Plaintiff told Kochel he could not be terminated based on his actions as a volunteer firefighter because he was protected by the Volunteer Act. Kochel said he did not care and continued the termination process. Plaintiff alleged that he was terminated for engaging in an activity protected by the Volunteer Act and sought reinstatement and a monetary judgment in excess of $10, 000.

         ¶ 5 In count II, plaintiff realleged many of the allegations from count I, including that defendant terminated his employment after he attended a fire call on January 15, 2014, and, as a result, was tardy for work. Plaintiff further alleged that he was "retaliated against because of his protected activity" and his "termination was in violation of public policy of the State of Illinois." Due to his unlawful termination, plaintiff suffered loss of earnings and benefits and sought a judgment in excess of $10, 000.

         ¶ 6 Defendant filed a motion for summary judgment that alleged there were no genuine issues of material fact. 735 ILCS 5/2-1005(c) (West 2014). In the motion, defendant argued that plaintiff was not protected by the Volunteer Act because he received more than $240 in compensation from the District and he was not discharged in violation of public policy.

         ¶ 7 In support of its motion, defendant attached, as defendant's exhibit A, plaintiff's response to defendant's Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) interrogatories. In the interrogatories, plaintiff said he began volunteering for the District on March 3, 2011. Plaintiff was paid "incentive pay" in the following amounts: $492.50 in 2011, $842.50 in 2012, $1142.50 in 2013, and $1035 in 2014. Plaintiff said the pay was based on the number of calls he responded to and the training he attended. On January 15, 2014, at 6:45 a.m., plaintiff notified defendant via pager that he was attending a fire call. Plaintiff was scheduled to work for defendant at 8 a.m. Plaintiff returned to work around 12:30 p.m.

         ¶ 8 Defendant's exhibit B included plaintiff's response to defendant's request to produce documents. The documents included plaintiff's 2014 W-2 from the District, which showed he received "Wages, tips, other comp" in the amount of $1035. The documents also included a letter from the District that stated the District compensates each volunteer firefighter for training and calls attended and, at the end of the year, each firefighter receives a check for "their time served." In response to a subpoena, the District provided its 2013 and 2014 payroll report for plaintiff and a copy of a check issued to plaintiff.

         ¶ 9 The court granted summary judgment for defendant finding it was "bound by language of [the Volunteer Act] and [the Fire Protection District Act (Protection Act) (70 ILCS 705/6 (West 2014))]; it is not the court's role to rewrite statutes to make them more equitable or sensible. That is the legislature's role." Plaintiff appeals.

         ¶ 10 ANALYSIS

         ¶ 11 I. Summary Judgment

         ¶ 12 Plaintiff argues summary judgment was inappropriate because (1) the court's ruling was based on an erroneous and restricted view of the Volunteer Act and (2) at the time of his termination, plaintiff was engaged in an activity that is protected under the common law. We reject both arguments in turn.

         ¶ 13 Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2014). "[S]ummary judgment is not appropriate: (1) if 'there is a dispute as to a material fact' (Jackson v. TLC Associates, Inc., 185 Ill.2d 418, 424 (1998)), (2) if 'reasonable persons could draw divergent inferences from the undisputed material facts' (id.), or (3) if 'reasonable persons could differ on the weight to be given the relevant factors' of a legal standard (Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 269 (2007))." Seymour v. ...

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