{ "id": 2615993, "name": "WILLIAM PARTON, Plaintiff-Appellant, v. A.L. RANDALL COMPANY, Defendant-Appellee", "name_abbreviation": "Parton v. A.L. Randall Co.", "decision_date": "1989-03-06", "docket_number": "No. 2\u201488\u20140104", "first_page": "856", "last_page": "863", "citations": [ { "type": "official", "cite": "180 Ill. App. 3d 856" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "401 N.E.2d 1094", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1095-96" }, { "page": "1095-96" }, { "page": "1095-96" } ], "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3230866 ], "weight": 3, "pin_cites": [ { "page": "821-22" }, { "page": "821-22" }, { "page": "821-22" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0818-01" ] }, { "cite": "485 N.E.2d 372", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "108 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130445 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/108/0502-01" ] }, { "cite": "421 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "85 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469094 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/85/0124-01" ] }, { "cite": "509 N.E.2d 744", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 637", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3505997 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0637-01" ] }, { "cite": "478 N.E.2d 1354", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "pin_cites": [ { "page": "1357" }, { "page": "1356" } ], "opinion_index": 0 }, { "cite": "106 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138751 ], "weight": 6, "pin_cites": [ { "page": "527" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0520-01" ] }, { "cite": "384 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "pin_cites": [ { "page": "357" } ], "opinion_index": 0 }, { "cite": "74 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994390 ], "weight": 7, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0172-01" ] } ], "analysis": { "cardinality": 662, "char_count": 17213, "ocr_confidence": 0.778, "pagerank": { "raw": 6.851653180992577e-08, "percentile": 0.41771914115456155 }, "sha256": "0a22931c47241c6c48014b9b6981403e225a34051604a9f99200e42394e47589", "simhash": "1:333274f59fcc0492", "word_count": 2736 }, "last_updated": "2023-07-14T16:06:12.370658+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM PARTON, Plaintiff-Appellant, v. A.L. RANDALL COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE LINDBERG\ndelivered the opinion of the court:\nPlaintiff, William Parton (Parton), appeals from an order of the circuit court of Lake County which dismissed his one-count complaint for retaliatory discharge against the defendant, A.L. Randall Company (Randall), pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 615) for failure to state a cause of action. In an order pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23), we reversed the dismissal on the ground that plaintiff\u2019s complaint claiming he was discharged in retaliation for seeking \u201cjust compensation\u201d for his work-related injury stated a cause of action where one aspect of the just compensation was a claim for and the settlement of his claim for workers\u2019 compensation relying upon Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.\nDefendant filed a timely petition for rehearing contending that we misapprehended the issue raised by plaintiff-appellant in his brief and reply brief, that \u201cplaintiff\u2019s complaint does not include an allegation of discharge for filing a workers\u2019 compensation claim,\u201d and that plaintiff\u2019s contention that he was seeking just compensation referred only to \u201cthe pursuit of a common-law suit for damages against a nonem-ployer tortfeasor.\u201d\nThere is no question but that plaintiff argued in his briefs in this case that the violation of a clearly mandated public policy necessary to support a cause of action for retaliatory discharge (Barr v. KelsoBurnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354) should be expanded to embrace the filing of the common-law negligence action against a nonemployer alleged to be at least partially liable for the plaintiff\u2019s injury. Plaintiff\u2019s rationale included the fact that such a common-law action is specifically recognized as not being prohibited by section 5(b) of the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b)). Without question, plaintiff invited us in his briefs to undertake such a determination.\nWe declined, however, concluding instead that so long as the claim and settlement of his workers\u2019 compensation claim were part of the facts underlying his characterization of his conduct as seeking \u201cjust compensation,\u201d it was error to dismiss the complaint for failure to state a cause of action. Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 615(a).\nNonetheless, we granted defendant\u2019s petition for rehearing and ordered plaintiff\u2019s response in an effort to determine whether plaintiff\u2019s appeal intended to exclude his claim for workers\u2019 compensation from his definition of \u201cjust compensation\u201d pursuant to defendant\u2019s characterization. Plaintiff filed a response but declined to rise to defendant\u2019s bait, relying instead on the arguments in his appellant\u2019s brief and reply brief.\nWe now withdraw the original order filed November 30, 1988, and submit this opinion as our disposition of the appeal. As before, we reverse the judgment of the circuit court and remand the cause for further proceedings.\nPlaintiffs complaint alleged that plaintiff, Parton, was employed by defendant, Randall, from approximately March 1984 to August 17, 1987. On July 3, 1984, plaintiff was severely injured while working in defendant\u2019s warehouse by coming in contact with an electrical power cord. He filed a workers\u2019 compensation claim against his employer. He also filed a common-law negligence action against Marsh Electric Company (Marsh), which had installed the electrical cord. Marsh filed a third-party complaint seeking contribution from plaintiff\u2019s employer, Randall. The common-law negligence action was reached for trial on July 20, 1987, and settled on July 23, 1987, along with Marsh\u2019s complaint for contribution against Parton and the workers\u2019 compensation claim and employer\u2019s lien. Plaintiff\u2019s complaint further alleged that plaintiff received $10,000 from Marsh in settlement of his common-law negligence action and $37,000 from his employer, Randall. On August 17, 1987, plaintiff was discharged by defendant Randall.\nPlaintiff\u2019s complaint concluded by alleging that defendant had a duty to refrain from discharging plaintiff in retaliation for his seeking just compensation for injuries received on the job and that the discharge was the proximate cause of injury to the plaintiff for which he seeks compensatory damages in excess of $15,000 and punitive damages in the amount of $100,000.\nDefendant Randall filed a section 2 \u2014 615 motion to dismiss. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 615.) Defendant contended that plaintiff did not allege that he was fired because he filed a workers\u2019 compensation claim but, rather, because he sought and obtained just compensation for his injuries. Defendant relied upon Barr v. KelsoBurnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354, as authority for the proposition that not every constitutional or statutory right is protected by the tort of retaliatory discharge. In Kelso, the supreme court reiterated the standard that must be met to implicate the tort of retaliatory discharge, which is the violation of any clearly mandated public policy. Defendant argued in its motion that the complaint must be dismissed because it failed to identify any public policy which is clearly mandated and which was violated by the alleged discharge.\nPlaintiff\u2019s response to defendant\u2019s motion to dismiss was that the complaint arose from the alleged wrongful discharge of plaintiff almost immediately following the settlement of his workers\u2019 compensation action in July 1987. Plaintiff contended that defendant was attempting to misstate the facts set forth in the complaint to support defendant\u2019s theory that recovery was sought solely on the basis of the settlement of the third-party claim. Plaintiff contended that his complaint was fully supported as \u201can action under the penumbra of the retaliatory discharge tort,\u201d noting that he pursued parallel workers\u2019 compensation and common-law actions.\nPlaintiff\u2019s response further emphasized that the settlement agreement, which was brought to the attention of the court, demonstrated that the basic thrust of the settlement was that defendant was to pay the sum of $37,000 to plaintiff in addition to waiving any lien it had under the Workers\u2019 Compensation Act. Plaintiff noted that in consideration of the payment of the monies, he agreed to dismiss the workers\u2019 compensation action without further payment or proceedings, to dismiss the common-law action with prejudice and provide a full and general release to defendant for any claims arising from his injury. Plaintiff also observed that there were also terms with respect to Marsh, but they are not relevant to the issues in the case at bar.\nPlaintiff concluded his response by stating that the instant action was premised on all of the facts in the complaint. Plaintiff stated:\n\u201cThe facts are clear, the defendant fired the plaintiff in retaliation for seeking his rights to recovery under the workers\u2019 compensation laws of the State of Illinois. That these rights were and remain inextricably intertwined with the filing and settlement of a third-party action is an intrinsic fact which cannot be brushed aside by the distorted view of the facts that the defendant urges. What is relevant and material in this claim is the entire factual situation regarding the underlying injury, the means and methods of prosecuting a claim for workers\u2019 compensation and the facts relating to eventual settlement crowned with the nearly simultaneous discharge of plaintiff for no articulated reasons. The public policy of this State has been clearly pronounced to be the vigorous protection of the injured workers\u2019 rights to compensation for his injuries, which rights must be freely exercisable or they are lost. Where defendant has allegedly fired plaintiff for exercising these rights, he has a cause of action.\u201d\nFinally, defendant replied to plaintiff\u2019s response by contending that plaintiff filed a third-party claim which led to a suit back against the employer for contribution which led to the settlement of plaintiff\u2019s common-law action. Defendant stated that plaintiff\u2019s complaint could only be read to allege the theory that plaintiff was fired for filing the third-party claim and not because of the filing of the workers\u2019 compensation claim. Defendant then argued that in Buechele v. St. Mary\u2019s Hospital (1987), 156 Ill. App. 3d 637, 509 N.E.2d 744, the court held that the right to file a lawsuit claiming individual injury is a purely personal right and does not involve any clearly mandated public policy. It is no tort to fire an employee because the employee filed a lawsuit, directly or indirectly, against an employer, except in the very limited circumstances of the workers\u2019 compensation claim. Defendant concluded that because the complaint was drafted in such a way that would allow recovery on the theory that defendant was liable because it fired plaintiff for filing the third-party complaint, as opposed to a workers\u2019 compensation claim, the complaint must be dismissed.\nThe circuit court found for defendant. Plaintiff appealed, and we now reverse and remand.\nIn his appellant\u2019s brief, plaintiff argued that this State has a clearly mandated public policy of protecting persons from discharge in retaliation for \u201cpursuing remedies\u201d under the Workers\u2019 Compensation Act. (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353; Barr v. KelsoBurnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354 (and the cases cited therein).) Plaintiff also argued that the clear mandate of public policy extends to the \u201centire\u201d Workers\u2019 Compensation Act, including \u201call\u201d the provisions of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). (Ill. Rev. Stat. 1985, ch. 48, par. 138.4(h).) Plaintiff\u2019s third and last issue was that he stated a cause of action for retaliatory discharge \u201cby alleging facts\u201d that he was discharged for exercising his rights under section 5 of the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5).\nPlaintiff describes the nature of the case on appeal as appearing to present a new issue under the retaliatory discharge tort. He described that issue as whether or not an employer has a right to fire an employee for successfully pursuing a common-law suit for damages against a nonemployer tortfeasor.\nBut, plaintiff also raised in this appeal by clear and unmistakable argument and in the court below that he was discharged for pursuing \u201cjust compensation\u201d and that just compensation was not limited to recovery under a common-law suit against a nonemployer, but also recovery for his workers\u2019 compensation claim. Plaintiff observed that in his complaint, he alleged facts demonstrating that he was exercising his rights under section 5 to sue a nonemployer tortfeasor for damages and that he was pursuing a parallel claim for compensation directly against his employer in the Industrial Commission. Plaintiff argued that he had \u201calleged facts\u201d demonstrating that he was discharged in retaliation for his success on the merits of his suits and claims, satisfying the tests of Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876, Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354, and Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E.2d 372. Finally, plaintiff distinguished Buechele v. St. Mary\u2019s Hospital (1987), 156 Ill. App. 3d 637, 509 N.E.2d 744, cited to the trial court by defendant, noting that the case involved a complaint for retaliatory discharge based upon the alleged firing of the plaintiff for suing her employer for libel, slander and negligent infliction of emotional distress. The Buechele court concluded that her suit sought to enforce private rights and not clearly mandated public policy as those rights are specifically granted in statutes such as the Workers\u2019 Compensation Act.\nAs we noted in our withdrawn order, the issue on appeal is whether a complaint states a cause of action when it alleges that the plaintiff was discharged in retaliation for his filing a workers\u2019 compensation claim against his employer and a common-law negligence action against the nonemployer tortfeasor alleged to be liable, or jointly liable, for the injury received in the course of plaintiff\u2019s employment.\nIn adjudicating motions to dismiss a complaint for failure to state a cause of action, the pleadings are to be construed liberally. (Pfendler v. Anshe Emet Day School (1980), 81 Ill. App. 3d 818, 821-22, 401 N.E.2d 1094, 1095-96.) Motions to dismiss a complaint for failure to state a cause of action admit as true all facts properly pleaded. (Pfendler, 81 Ill. App. 3d at 821-22, 401 N.E.2d at 1095-96.) Pleadings themselves should not be the basis for a dismissal unless it clearly appears that plaintiffs can prove no set of facts which support a recovery. Pfendler, 81 Ill. App. 3d at 821-22, 401 N.E.2d at 1095-96.\nThe Illinois Supreme Court first recognized the tort of retaliatory discharge in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. The requirements for this tort are met when an employee is fired for participating in an activity which public policy supports. (Kelsay, 74 Ill. 2d at 181, 384 N.E.2d at 357.) Our supreme court has devised a test to determine whether a complaint states a cause of action for retaliatory discharge:\n\u201cThe test *** is whether the public policy clearly mandated by the cited provisions is violated by the plaintiff\u2019s discharge. [Citation.] The application of this test necessarily involves determining what the public policy is behind the enactment or adoption of the particular provision.\u201d Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 527, 478 N.E.2d 1354, 1357.\nTerminating an employee for pursuing rights under the Workers\u2019 Compensation Act (Act) violates public policy (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353) and is therefore actionable in tort. Barr, 106 Ill. 2d at 525, 478 N.E.2d at 1356.\nPlaintiff did not allege in his complaint, as defendant attempts to convince us, that he was discharged only because the non-employer-tortfeasor Marsh filed a complaint against defendant Randall for contribution. Nor did plaintiff limit his allegation to being discharged for filing the common-law negligence claim against Marsh as defendant argues. Rather, plaintiff claimed he was discharged in retaliation for seeking \u201cjust compensation\u201d for the injuries he sustained in the course of his employment which was sought by means of a workers\u2019 compensation claim and a common-law negligence action (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b)), the former being specifically authorized, and the latter being specifically not prohibited by the Act. Ill. Rev. Stat. 1987, ch. 48, par. 138.5.\nWe recognize that counsel for the parties are anxious for a resolution of the issue of whether the tort of retaliatory discharge exists for \u201ctaking\u201d (filing) a common-law action against someone other than the employer which section 5(b) of the Workers\u2019 Compensation Act states \u201cmay be taken.\u201d (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b).) However, we need not and do not decide whether issues arising out of the filing of the common-law action would support a cause of action for retaliatory discharge because the instant complaint included an allegation of discharge for filing a workers\u2019 compensation claim which, in itself, supports a cause of action for retaliatory discharge. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) We realize that plaintiff put almost all of his eggs in the common-law-negligence-action basket in his appellate briefs, perhaps hoping for the sought-after resolution. Nonetheless, his complaint and response and his briefs in this court also relied squarely on the \u201cfacts alleged\u201d in his complaint and the precedent established by Kelsay that the filing of a workers\u2019 compensation claim is protected as a public policy of this State.\nFinally, we note that plaintiff failed to avail himself of the provisions of Supreme Court Rule 367 (113 Ill. 2d R. 367) by filing a petition for rehearing, or by supporting the argument in defendant\u2019s petition for rehearing that this court misapprehended the issues on appeal. We conclude, therefore, that plaintiff acquiesced in our conclusion that in the trial court and on appeal he sufficiently alleged and argued the fact of recovery for this workers\u2019 compensation claim to form a sufficient basis on appeal for a reversal of the judgment of dismissal of the circuit court.\nThe judgment of the circuit court is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\nUNVERZAGT, P.J., and REINHARD, J\u201e concur.", "type": "majority", "author": "JUSTICE LINDBERG" } ], "attorneys": [ "Robert J. Long and Marcia A. Korducki, both of Law Offices of Robert J. Long, Ltd., of Antioch, for appellant.", "Alfred Y. Kirkland, Jr., and Charles F. Haverty III, both of Brady, McQueen, Martin, Collins & Jensen, of Elgin, for appellee." ], "corrections": "", "head_matter": "WILLIAM PARTON, Plaintiff-Appellant, v. A.L. RANDALL COMPANY, Defendant-Appellee.\nSecond District\nNo. 2\u201488\u20140104\nOpinion filed March 6, 1989.\nRobert J. Long and Marcia A. Korducki, both of Law Offices of Robert J. Long, Ltd., of Antioch, for appellant.\nAlfred Y. Kirkland, Jr., and Charles F. Haverty III, both of Brady, McQueen, Martin, Collins & Jensen, of Elgin, for appellee." }, "file_name": "0856-01", "first_page_order": 878, "last_page_order": 885 }