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  "name": "MARTIN ABRAMS, Plaintiff-Appellant, v. ECHLIN CORPORATION et al., Defendants-Appellees",
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    "parties": [
      "MARTIN ABRAMS, Plaintiff-Appellant, v. ECHLIN CORPORATION et al., Defendants-Appellees."
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      {
        "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nPlaintiff brought this action charging his former employer and its president with retaliatory discharge. The trial court granted the defendants\u2019 motion to dismiss the action pursuant to section 2 \u2014 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619). Plaintiff appeals, charging that the trial court erred in dismissing his suit.\nPlaintiff\u2019s employment as a salesman by EPE, Inc. (EPE), began in 1983 and ended on February 21, 1985. During the calendar year 1984 he worked pursuant to a written agreement that provided for the payment of wages which included commissions earned on sales exceeding 80% of his \u201cquota\u201d; one half the commissions were payable quarterly and the remainder annually. The contract also included a clause that commissions paid on merchandise returned by a customer were to be \u201ccharged back\u201d against the salesman\u2019s account. There is no dispute as to the \u201cat will\u201d status of plaintiff\u2019s employment.\nIn early 1985, plaintiff and EPE had a dispute as to whether commissions on merchandise sold in 1984 and returned by the customer in January 1985 would be charged back against the 1984 or 1985 commissions. Plaintiff maintained that he was owed commissions totaling $4,250. After some discussion between plaintiff and the national sales manager for EPE, $2,250 of the amount claimed due was paid, which left a disputed balance of $2,000.\nOn February 15, 1985, plaintiff sent a letter to Bjarne Qvale (Qvale), the president of EPE, explaining the problem and complaining that he had not been paid the amount owed to him. Six days later, while plaintiff was at a customer\u2019s place of business in Chicago, Qvale had a telephone conversation with plaintiff, in which he told him, \u201cI have just read your letter. No one tells me how to run my business. You are terminated, and you are to leave the customer\u2019s place of business immediately.\u201d\nAbrams filed a complaint grounded in retaliatory discharge in violation of the Illinois Wage Payment and Collection Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 39m \u2014 14) against EPE, Qvale and the Echlin Corporation (Echlin), which had acquired EPE Inc., since plaintiff\u2019s discharge. Echlin filed a motion to dismiss the complaint pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 615), but this motion was not ruled on since Echlin was later dismissed from the case by an agreed order. Subsequently, EPE filed a motion to dismiss the action pursuant to section 2 \u2014 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014 619(a)(9)), charging, inter alia, that plaintiff\u2019s complaint contained a conclusion rather than a well-pleaded fact regarding his discharge, that neither the specific reason for plaintiff\u2019s discharge nor plaintiff\u2019s letter regarding the commission dispute indicate any reliance on or reference to the Illinois Wage Payment and Collection Act or any relationship between the Act and plaintiff\u2019s discharge, and that no public policy dispute was involved between the parties but rather one arising out of a purely private matter \u2014 their written agreement. The court granted the motion after hearing argument thereon. Upon denial of plaintiff\u2019s motion to reconsider, in which plaintiff stated that the court had misapprehended the meaning of the statute, a timely appeal was filed.\nOpinion\nAlthough defendants properly filed a motion to dismiss under section 2 \u2014 619 of our Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619), the case was presented to both the trial court and to this court very largely on the ground that plaintiff failed to state a cause of action; our discussion here will accordingly treat substantially with that issue.\nIn order to state a cause of action for retaliatory discharge \u201c[a]ll that is required is that the employer discharge the employee in retaliation for the employee\u2019s activities, and that the discharge be in contravention of a clearly mandated public policy.\u201d (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134, 421 N.E.2d 876.)\n(See also Brazinski v. Transport Service Co. (1987), 159 Ill. App. 3d 1061, 1068, 513 N.E.2d 76; and generally Yonover, Retaliatory Discharge in Illinois: Recent Developments, 61 Chi. Kent L. Rev. 671 (1985).) Thus, in order to survive a motion to dismiss, plaintiff must plead facts that establish retaliation in the firing of an at-will employee in contravention of a public policy.\nPlaintiff\u2019s complaint asserts that his employment was terminated because he stated to Qvale that he would take legal action to enforce his rights under the Illinois Wage Payment and Collection Act (Ill. Rev. Stat. 1985, ch. 48, par. 39m \u2014 1 et seq.) and under the terms of the agreement he had with EPE. Plaintiff acknowledges that he did not specifically mention the Act in his letter, but defendants concede that such specific reference is not necessary to state a cause of action.\nDefendants contend that plaintiff\u2019s statement regarding the reason for his discharge was a conclusion not supported by any allegations of specific facts, and they point to the trial memorandum of plaintiff in which he states, \u201cOf course the statement is conclusory in nature at this point. But Mr. Abrams intends to prove the fact at trial.\u201d Plaintiff argues that the conclusion \u201cis no less than a reasonable inference supported by the other specific factual allegations of the complaint.\u201d\nThis court set forth the standard to be applied in considering a motion to dismiss for failure to state a cause of action in Skinner v. Mahomet Seymour School District (1980), 90 Ill. App. 3d 655, 413 N.E.2d 507, as follows:\n\u201cThere are certain general rules of construction to be applied when a complaint is challenged for failure to state a cause of action. The essential test of the sufficiency of the complaint is whether it reasonably informs the defendant of a valid claim under a general class of cases of which the court has jurisdiction. [Citation.] In determining the sufficiency of the complaint, the court must accept as true all well pleaded facts and reasonable inferences drawn therefrom. [Citation.] No pleading is bad in substance where it reasonably informs the opposite party of the nature of the claim. [Citation.] Finally, a complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under pleadings which would entitle plaintiff to relief.\u201d 90 Ill. App. 3d at 656-57.\nA fair reading of the complaint in the instant case reasonably informs the defendant that plaintiff claims he was discharged in retaliation for complaining to his employer that he had not been paid for his services and for stating that he would take legal action to enforce such payment. Accordingly, we hold that plaintiff\u2019s complaint supplies the first element of the retaliatory discharge test in that he pleads a set of facts that could establish retaliation in his firing.\nThe second element of a retaliatory discharge claim requires plaintiff to plead the \u201ccontravention of a clearly mandated public policy\u201d by his employer. While our courts have not defined \u201cpublic policy\u201d with any degree of exactness, adequate guidelines can be found in the cases treating with this relatively new tort.\nRetaliatory discharge was first recognized as a tort by the supreme court in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. In that case, plaintiff, an at-will employee, was discharged because she had filed a workers\u2019 compensation claim. The court stated:\n\u201cIt [the Workers\u2019 Compensation Act] provides for efficient remedies for and protection of employees and, as such, promotes the general welfare of this State. *** We are convinced that to uphold and implement this public policy a cause of action should exist for retaliatory discharge.\n***\nWe are not convinced that an employer\u2019s otherwise absolute power to terminate an employee at will should prevail when that power is exercised to prevent the employee from asserting his statutory rights under the Workmen\u2019s Compensation Act.\u201d 74 Ill. 2d at 181.\nIn Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 127, 421 N.E.2d 876, the supreme court granted plaintiff leave to appeal \u201cto determine the contours of the tort of retaliatory discharge.\u201d In that case Palmateer was discharged for supplying information to local law enforcement authorities that an employee of the company might be involved in criminal activity and for\u2018agreeing to assist in the investigation and trial of the employee. The court stated:\n\u201cWhen a discharge contravenes public policy in any way the employer has committed a legal wrong. However, the employer retains the right to fire workers at will in cases \u2018where no clear mandate of public policy is involved\u2019 [citation]. ***\nThere is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State\u2019s constitution and statutes and, when they are silent, in its judicial decisions.\u201d (85 Ill. 2d at 130.)\nTo be actionable a retaliatory discharge must not be of a purely personal nature but must \u201cstrike at the heart of a citizen\u2019s social rights, duties, and responsibilities.\u201d 85 Ill. 2d at 130.\nPlaintiff cites several Illinois cases to illustrate the court\u2019s application of this formula to various fact situations. In the first case he cites, Petrik v. Monarch Printing Corp. (1982), 111 Ill. App. 3d 502, 444 N.E.2d 588, the employee, an accountant, was discharged for reporting his suspicions of embezzlement of corporate funds by \u201cofficers and/or employees\u201d to the company\u2019s president and chief operating officer. The Petrik court, comparing the facts to those in Palmateer, found that:\n\u201c[The complaint] involves something more than an ordinary internal dispute between an employee and his employer. It is equally apparent that the public policy considerations that underlie Palmateer also support Petrik\u2019s conduct.\u201d (111 Ill. App. 3d at 508.)\nAnd the public policy considerations referred to by this court in Petrik were described earlier by the supreme court in Palmateer as follows:\n\u201cThere is no public policy more basic, nothing more implicit in the concept of ordered liberty [citation], than the enforcement of a State\u2019s criminal code. ***\n*** [P]ublic policy nevertheless favors citizen crime-fighters.\u201d Palmateer, 85 Ill. 2d at 132.\nPlaintiff next cites Johnson v. World Color Press, Inc. (1986), 147 Ill. App. 3d 746, 498 N.E.2d 575, in which the plaintiff was discharged in retaliation for his opposition to certain accounting practices of the employer which he claimed constituted violations of Federal securities laws. In dealing with the question of public policy the court stated:\n\u201cIn summary, we find that public policy favors full disclosure, truthfulness and accuracy in the financial report made by businesses to the government and to the public, and that an employee who voices objection to practices which he reasonably believes violate this policy should be protected from being discharged as a result of such objection.\u201d 147 Ill. App. 3d at 750.\nPetrik and Johnson are clearly distinguishable from the case at bar because they involved possible illegal activity on the part of the employer, and the employees charged that they were fired for attempting to report this activity to the proper authority. This is not the case here.\nPlaintiff cites the Illinois Wage and Payment Collection Act, which provides:\n\u201cAny employer, or any agent of an employer, who knowingly discharges or in any other manner knowingly discriminates against any employee because that employee has made a complaint to his employer, or to the Director of Labor or his authorized representative, that he or she has not been paid in accordance with the provisions of this Act, or because that employee has caused to be instituted any proceeding under or related to this Act, or because that employee has testified or is about to testify in any investigation or proceeding under this Act, is guilty, upon conviction, of a Class C misdemeanor.\u201d (Emphasis added.) Ill. Rev. Stat. 1985, ch. 48, par. 39m \u2014 14(c).\nPlaintiff argues that the Act embodies a clearly mandated public policy in favor of employees who seek to recover wages due to them, and that his discharge violated that policy. However, plaintiff does not identify in his complaint or in his brief the \u201cprovisions of this Act\u201d which were violated when his employer indicated it would set off commissions paid on returned merchandise. The agreement of the parties to this proceeding clearly provides for such a set off procedure. The disagreement of the parties existed only as to whether the setoff should take place in 1984 or 1985.\nAs the court said in Palmateer:\n\u201cIn general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively ***. *** [A] matter must strike at the heart of a citizen\u2019s social rights, duties, and responsibilities before the tort will be allowed.\u201d (Palmateer, 85 Ill. 2d at 130.)\nThe instant case clearly does not appear to be such a matter but, rather, a purely personal and private dispute.\nDefendants cite Kavanagh v. KLM Royal Dutch Airlines (N.D. Ill. 1983), 566 E Supp. 242, in which plaintiff was involved in a wage dispute with his employer, who claimed that he had been overpaid $21,000 in salary. Plaintiff hired an attorney and was fired about a week after his attorney sent a letter to the company advising it of plaintiff\u2019s resolve to file suit if an attempt was made to reduce his salary. According to plaintiff\u2019s complaint the public policy violated was one assuring citizens of the right to retain counsel and have access to the courts. The court reasoned:\n\u201cEven if the court limited plaintiff\u2019s theory to the employment context, it would metamorphose the supposedly narrow exception recognized in Kelsay and Palmateer into the monster that swallowed the employment-at-will rule. Whenever a dispute between an employer and an at-will employee threatens to culminate in the employee\u2019s discharge, the employee, simply by retaining an attorney and threatening to sue, could procure that which is unavailable to him through contract \u2014 employment security.\u201d 566 F. Supp. at 244.\nThe Kavanagh court also discussed the Illinois Wage Payment and Collection Act, the same statute invoked by plaintiff in the instant case. The court stated:\n\u201cIn essence, he [plaintiff] asks the court to find that an at-will employee cannot be discharged because of any dispute with his employer concerning the payment of wages when he has retained an attorney. Such a result, the court concludes, is not clearly mandated by any public policy favoring the exercise of rights under the Wage Payment and Collection Act.\u201d 566 F. Supp. at 245.\nThe facts in Kavanagh are analogous to those in the instant case, for while plaintiff here did not engage an attorney, he did threaten to take \u201cnecessary legal action to secure payment.\u201d Thus, it would appear that the court\u2019s reasoning in Kavanagh would apply here.\nPlaintiff in the case sub judice analogizes his situation to that of the plaintiff in Hinthom v. Roland\u2019s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 519 N.E.2d 909, in which the employee requested that her employer furnish medical attention for a back injury received in the course of her employment. As a result her employer directed her to sign a resignation form. The complaint in Hinthom did not state that plaintiff had filed a claim for workers\u2019 compensation benefits or that she had threatened to do so. However, the court noted that by the facts alleged, plaintiff had the right under the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) to receive medical attention. Hinthom, 151 Ill. App. 3d at 1009.\nPlaintiff here argues that the trial court placed a great deal of emphasis on the fact that he had only complained to his employer rather than exhausting his administrative remedies under the Act. Plaintiff would have this court conclude that because the Hinthom court found that the complaint in that case adequately stated a cause of action even though the plaintiff had only requested that her employer provide her with medical aid, this court should similarly find his complaint sufficient even though he had only threatened to take legal action.\nHowever, as defendants point out, section 8 of the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8) specifically requires an employer to make medical services available to employees who are injured while in the course of their employment, while plaintiff in the instant case, by contrast, does not point to any specific right that he was exercising under the Wage Collection and Payment Act. During oral argument plaintiff referred generally to sections 3 and 4 of the Act, which state in pertinent part:\n\u201cSec. 3. Every employer shall be required, at least semimonthly, to pay every employee all wages earned during the semi-monthly pay period. Wages of executive, administrative and professional employees, as defined in the Federal Fair Labor Standards Act of 1939, may be paid once a month. Commissions may be paid once a month.\nSec. 4. All wages earned by any employee during a semimonthly or bi-weekly pay period shall be paid to such employee not later than 13 days after the end of the pay period in which such wages were earned. All wages earned by any employee during a weekly pay period shall be paid not later than 7 days after the end of the weekly pay period in which the wages are earned. All wages paid on a daily basis shall be paid insofar as possible on the same day as the wages were earned, or not later in any event than 24 hours after the day on which the wages were earned. Wages of executive, administrative and professional employees, as defined in the Federal Fair Labor Standards Act of 1938, may be paid on or before 21 calendar days after the period during which they are earned.\nThe terms of this Section shall not apply, if there exists a valid collective bargaining agreement which provides for a different date or for different arrangements for the payment of wages.\u201d Ill. Rev. Stat. 1985, ch. 48, pars. 39m \u2014 3, 39m \u2014 4.\nSince plaintiff cited this specific reference for the first time only in oral argument, we deem the issue to have been waived for purposes of review. (Board of Education v. Kusper (1982), 92 Ill. 2d 333, 442 N.E.2d 179.) However, even if we assume arguendo that the issue was not waived, we find nothing in the sections of the statute cited, nor anything in the Illinois Department of Labor\u2019s Rules Regulating Deductions From Wages, to substantiate plaintiff\u2019s reliance on the Act in the instant situation.\nPlaintiff and defendant had a written agreement that provided for the payment of commissions. There is no disagreement between them as to whether or not a setoff could be made as against commissions if a customer returned merchandise; the dispute arose because their agreement did not specifically delineate when such a setoff was to be made. As we have previously noted, this case involves the interpretation of a written agreement between two parties, which can hardly be classified as an issue which \u201cstrike[s] at the heart of a citizen\u2019s social rights, duties, and responsibilities.\u201d Palmateer v. International Harvester Co., 85 Ill. 2d at 130.\nAs the supreme court stated in Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354:\n\u201cThe fact that a constitutional or statutory provision is cited in the complaint, however, does not give rise to a retaliatory-discharge cause of action. The test for determining if the complaint states a valid cause of action is whether the public policy clearly mandated by the cited provisions is violated by the plaintiff\u2019s discharge.\u201d 106 Ill. 2d at 527.\nThe court in Barr also reaffirmed the common law doctrine regarding the termination of at-will employees and warned against too broad a reading of the comparatively new trot of retaliatory discharge when it stated:\n\u201cContrary to plaintiffs\u2019 assertion, however, this court has not, by its Palmateer and Kelsay decisions, \u2018rejected a narrow interpretation of the retaliatory discharge tort\u2019 and does not \u2018strongly support\u2019 the expansion of the tort. The common law doctrine that an employer may discharge an employee-at-will for any reason or for no reason is still the law in Illinois, except for when the discharge violates a clearly mandated public policy.\u201d 106 Ill. 2d at 525.\nThus far, Illinois courts have applied the tort of retaliatory discharge in only two situations: where the discharge stems from asserting a workers\u2019 compensation claim and where the discharge is for certain activities which some cases and commentators refer to generally as \u201cwhistle-blowing.\u201d (Lemon v. Ward (N.D. Ill. 1985), 625 E Supp. 1110, 1117; see generally Cosgrave & Zwick, Identifying Public Policy in Retaliatory Discharge Cases in Illinois, 1988 Ill. B.J. 506; Yonover, Retaliatory Discharge in Illinois: Recent Developments, 61 Chi. Kent L. Rev. 671 (1985); Green, Retaliatory Discharge: Where is this Tort Going?, CBA Record 13 (March 1987).) We have not been presented with a set of facts which would justify our expanding the frontiers of the doctrine of retaliatory discharge in the instant case.\nAccordingly, for the reasons expressed, we affirm the circuit court of Cook County.\nAffirmed.\nHARTMAN, P.J., and BILANDIC, J., concur.",
        "type": "majority",
        "author": "JUSTICE SCARIANO"
      }
    ],
    "attorneys": [
      "Ronald H. Bals\u00f3n, of Chicago, for appellant.",
      "Michael Weininger and Lawrence M. Karlin, both of Katz, Randall & Weinberg, of Chicago, for appellees."
    ],
    "corrections": "",
    "head_matter": "MARTIN ABRAMS, Plaintiff-Appellant, v. ECHLIN CORPORATION et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 87\u20143417\nOpinion filed August 30, 1988.\nRonald H. Bals\u00f3n, of Chicago, for appellant.\nMichael Weininger and Lawrence M. Karlin, both of Katz, Randall & Weinberg, of Chicago, for appellees."
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  "last_page_order": 465
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