{ "id": 252802, "name": "DAVID SHERMAN, Plaintiff-Appellant, v. KRAFT GENERAL FOODS, INC., Defendant-Appellee", "name_abbreviation": "Sherman v. Kraft General Foods, Inc.", "decision_date": "1995-06-08", "docket_number": "No. 4\u201494\u20140772", "first_page": "833", "last_page": "840", "citations": [ { "type": "official", "cite": "272 Ill. App. 3d 833" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "634 N.E.2d 482", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "486" } ], "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 924", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5371207 ], "year": 1992, "pin_cites": [ { "page": "930" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0924-01" ] }, { "cite": "832 F. 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Ct.", "opinion_index": 0 }, { "cite": "90 L. Ed. 2d 187", "category": "reporters:federal", "reporter": "L. 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KRAFT GENERAL FOODS, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nPlaintiff, David Sherman, appeals an order of the trial court dismissing his third-amended complaint pursuant to section 2 \u2014 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 615). The complaint alleged defendant, Kraft General Foods, Inc. (Kraft), terminated him from his employment in retaliation for reporting to Kraft an asbestos-related hazard in the workplace. On appeal, plaintiff contends he sufficiently pleaded (1) Kraft terminated him in retaliation for his activities; and (2) the termination violated a clearly mandated public policy. We agree and reverse.\nPlaintiff made the following allegations in his third-amended complaint. He worked for Kraft from October 14, 1986, to May 12, 1992, at its facility in Champaign. While at Kraft, plaintiff became aware of the existence of a white dusty material in his work area. Plaintiff inquired as to the composition of the material, and John Getchel, \"Plaintiff\u2019s safety representative,\u201d told him it may be asbestos. According to the complaint, the position of safety representative at Kraft includes the following duties:\n\"receiving information from Defendant\u2019s employees regarding the safety and health conditions of the safety representative\u2019s assigned departments; remedying any safety or health hazards within the safety representative\u2019s designated department; and further reporting to Defendant any safety or health hazards that the safety representative is unable to remedy alone.\u201d\nPlaintiff himself had previously been \"appointed\u201d safety representative. On May 11, 1992, plaintiff verbally reported the location of the material to Getchel, \"the individual to whom Plaintiff was to report any unsafe conditions or health hazards within Plaintiff\u2019s work area.\u201d Neither Getchel nor any other Kraft representatives informed plaintiff of any additional procedures necessary to report asbestos-related safety and health hazards.\nPlaintiff told Getchel he intended to retrieve a piece of exposed and deteriorating insulation. After informing Getchel of his intentions, plaintiff retrieved a piece of the insulation so he could report the hazard to Kraft or, if necessary, to the Occupational Safety and Health Administration (OSHA). After plaintiff retrieved the insulation, Getchel told him to give it to plaintiff\u2019s immediate supervisor, Kirk Luna. Getchel also said Kraft would not want any asbestos-related hazards reported. Since Luna was not on duty on May 11, 1992, plaintiff sealed the insulation in a plastic bag and placed it in his toolbox with the intention of giving it to Luna the following day and, if necessary, to OSHA. On May 12, 1992, plaintiff\u2019s toolbox was confiscated, and the material was tested and determined to contain asbestos. On May 14, 1992, Kraft terminated plaintiff.\nIn granting Kraft\u2019s motion to dismiss, the trial court held that plaintiff pleaded a valid public policy. However, the court held that plaintiff failed to sufficiently plead he was terminated in retaliation for his activities. Specifically, the court stated:\n\"The pleading describes that [Getchel] works 'at\u2019 Defendant\u2019s plant. The pleading describes duties he apparently has. There is no language stating that this position as 'Plaintiff\u2019s Safety Representative,\u2019 is as a result of some action by, or relationship of Getch-el\u2019s with the Defendant. *** The pleading does not indicate whether the safety representative position is a function of some informal relationship among employees, a union position, a government position, or a representative of the Defendant. Were Getchel\u2019s functions assigned by or conducted on behalf of the Defendant, it certainly would be simple enough to state that in a pleading. None of the efforts at pleading by the Plaintiff have done this. The Court is left to conclude that this omission must be because it cannot be pleaded that Getchel\u2019s position as 'Plaintiff\u2019s Safety Representative,\u2019 is as a consequence of some appointment, or empowerment, or function on behalf of the defendant.\u201d\nDismissal of a cause of action on the pleadings is only proper where it is clearly apparent that plaintiff can prove no set of facts that would entitle him to recover. (Illinois Graphics Co. v. Nickum (1994), 159 Ill. 2d 469, 483, 639 N.E.2d 1282, 1289.) In ruling on a section 2 \u2014 615 motion to dismiss, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences that can be drawn therefrom. (Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill. 2d 1, 9, 607 N.E.2d 201, 205.) We review the ruling on a motion to dismiss de novo. Toombs v. City of Champaign (1993), 245 Ill. App. 3d 580, 583, 615 N.E.2d 50, 51.\nIllinois continues to adhere to the employment-at-will doctrine, where a noncontracted employee serves at the employer\u2019s will and can be discharged for any reason or no reason. (Zimmerman v. Buchheit of Sparta, Inc. (1994), 164 Ill. 2d 29, 32, 645 N.E.2d 877, 879; Hartlein v. Illinois Power Co. (1992), 151 Ill. 2d 142, 159, 601 N.E.2d 720, 728.) The Supreme Court of Illinois created a limited exception to this general rule by recognizing the tort of retaliatory discharge for employees discharged for exercising their rights under the Workers\u2019 Compensation Act (Act) (see Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.). (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 181-82, 384 N.E.2d 353, 357.) Following Kelsay, the supreme court held \" '[a] plaintiff states a valid claim for retaliatory discharge only if [he] alleges that [he] was (1) discharged; (2) in retaliation for [his] activities; and (3) that the discharge violates a clear mandate of public policy.\u2019 \u201d Zimmerman, 164 Ill. 2d at 35, 645 N.E.2d at 880, quoting Hinthorn v. Roland\u2019s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911.\nPlaintiff first argues he sufficiently pleaded he was discharged in retaliation for investigating and reporting asbestos hazards. In order to satisfy this requirement, plaintiff must necessarily allege Kraft had notice of his activities before terminating him. The trial court held plaintiff did not satisfy this requirement because he did not sufficiently plead the relationship, if any, between Getchel and Kraft. We disagree.\nPlaintiff pleaded the following allegations to show Kraft had notice of plaintiff\u2019s activities before terminating him. Plaintiff had previously been \"appointed\u201d as safety representative. Plaintiff reported the hazard to Getchel, his safety representative \"at\u201d Kraft. The safety representative was the person to whom plaintiff was to report all health and safety conditions in his work area. Plaintiff was never informed of additional procedures necessary to report the hazard. Getchel\u2019s duties, as safety representative, included reporting health and safety hazards to Kraft. Plaintiff\u2019s toolbox, containing the potential asbestos sample, was confiscated the day after plaintiff retrieved it. Kraft terminated plaintiff two days later, allegedly in retaliation for his activities. Kraft argues that plaintiff\u2019s allegations are defective because he did not allege whether Kraft created the safety representative position. Since there has been no discovery in this case, plaintiff may have pleaded all that he can at this point. However, from these allegations, one could still reasonably infer that plaintiff reported the asbestos to Kraft through Getchel.\nFurthermore, plaintiff can allege a retaliatory discharge cause of action even if he was terminated before formally reporting the asbestos to Kraft. In Wolcowicz v. Intercraft Industries Corp. (1985), 133 Ill. App. 3d 157, 478 N.E.2d 1039, the court held that the plaintiff\u2019s retaliatory discharge action was not precluded simply because he was discharged prior to filing a workers\u2019 compensation claim. The court stated:\n\"In situations where an employer allegedly fires an employee in order to prevent him from exercising his statutory rights, it would be anomalous to deny a cause of action simply because the discharge had its intended effect of causing the employee to postpone or forego the exercise of his rights. In light of these considerations and the need to promote the public policy expressed in the [Act], we hold that the plaintiff\u2019s allegations state a cause of action.\u201d (Wolcowicz, 133 Ill. App. 3d at 162, 478 N.E.2d at 1042-43.)\nThe reasoning in Wolcowicz applies equally to this case. It would be an absurd result to deny a plaintiff\u2019s cause of action for retaliatory discharge where the employer discovers the employee\u2019s intent to report an occupational hazard and terminates him before he does so. We conclude that plaintiff sufficiently alleged he was discharged in retaliation for his activities.\nKraft argues plaintiff failed to sufficiently plead that his discharge violated a clearly mandated public policy. The trial court held that plaintiff adequately alleged a clearly mandated public policy. In his complaint, plaintiff alleged Illinois has a clearly mandated public policy \"which prohibits the discharge or discrimination against any employee who complains of occupational health hazards and the discharge of any employee in order to prevent that employee from reporting occupational health hazards.\u201d Initially, we note that the supreme court recently rejected a retaliatory demotion or discrimination cause of action. (Zimmerman, 164 Ill. 2d at 39, 645 N.E.2d at 882.) Therefore, the public policy must be to prevent the discharge, not demotion of or discrimination against, employees reporting occupational hazards.\nIn discussing what constitutes a \"clearly mandated public policy,\u201d the Supreme Court of Elinois stated:\n\"There 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 (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878.)\nIn dividing matters that are the subject of public policies from purely personal matters, the court stated \"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, 421 N.E.2d at 878-79.\nRetaliatory discharge actions are generally allowed in- only two situations. The first is when an employee is discharged for filing a claim under the Act. (See Kelsay, 74 Ill. 2d 172, 384 N.E.2d 353; Lambert v. City of Lake Forest (1989), 186 Ill. App. 3d 937, 941-42, 542 N.E.2d 1216, 1219 (and cases cited therein).) The second is when an employee is discharged for reporting illegal or improper conduct, sometimes referred to as \"whistle blowing.\u201d See Lambert, 186 Ill. App. 3d at 942-43, 542 N.E.2d at 1219-20 (and cases cited therein).\nPlaintiff\u2019s complaint falls into the whistle-blowing category. There are two main sources for the public policy. First, in Palmateer, the plaintiff claimed he was discharged for supplying information to the police that a fellow employee might be violating the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 1 \u2014 1 et seq.). The court stated there was no public policy more basic than enforcing the Code. In reaching this conclusion, the court relied, in part, on the preamble to the 1970 Illinois Constitution for the proposition that \"[t]here is no public policy more important or more fundamental than the one favoring the effective protection of the lives and property of citizens.\u201d Palmateer, 85 Ill. 2d at 132, 421 N.E.2d at 879.\nIn Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 584 N.E.2d 104, the plaintiff alleged he was discharged for telling the president of Gambro, Inc., that he would do whatever was necessary to stop the sale of kidney dialyzers that did not comply with regulations promulgated by the Food and Drug Administration (FDA). The court held that plaintiff\u2019s allegations triggered the clearly mandated public policy favoring the protection of the lives and property of citizens, as in Palmateer. However, the court ultimately held the plaintiff failed to state a claim because the plaintiff was the general counsel for the defendant. (Balla, 145 Ill. 2d at 499-500, 584 N.E.2d at 107-08.) In Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 ,N.E.2d 372, cert. denied (1986), 475 U.S. 1122, 90 L. Ed. 2d 187, 106 S. Ct. 1641, the plaintiff alleged he was discharged for refusing to work in the handling of radioactive material while the operations were being conducted in violation of regulations published by the Nuclear Regulatory Commission (NRC). The supreme court held that the protection of the lives and property of citizens from radioactive material was as important and fundamental as protecting them from crime, as recognized in Palmateer. Wheeler, 108 111. 2d at 510-11, 485 N.E.2d at 377.\nClearly, reporting asbestos-related occupational hazards implicates more than personal interests. Like the allegations in Palmateer, Balla, and Wheeler, allowing an employee to report occupational health hazards, such as asbestos, without being discharged, furthers the public policy of protecting the lives and property of the citizens of the State of Illinois as stated in the preamble to the 1970 Illinois Constitution.\nThe Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. \u00a7 651 et seq. (1988)) is a second source of public policy. Federal regulations enacted pursuant to the OSH Act regulate asbestos levels in the workplace. (29 C.F.R. \u00a7 1910.1001 (1994).) In addition, section 11(c)(1) of the OSH Act states:\n\"No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this [OSH Act] or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this [OSH Act].\u201d 29 U.S.C. \u00a7 660(c)(1) (1988).\nFor purposes of the tort of retaliatory discharge, public policy can be found in Federal law. In Wheeler, the supreme court held that the congressional findings (42 U.S.C. \u00a7 2012 (1982)) and the declaration of public policy (42 U.S.C. \u00a7 2011 (1982)) in the Atomic Energy Act of 1954 (42 U.S.C. \u00a7 2011 et seq. (1982)) clearly enunciated a public policy which was of national scope. (Wheeler, 108 Ill. 2d at 506, 485 N.E.2d at 374-75.) In Balla, the court held the plaintiff\u2019s efforts to stop the sale of medical equipment that did not meet FDA requirements advanced the clearly mandated public policy of protecting the lives of citizens. (Balla, 145 Ill. 2d at 499, 584 N.E.2d at 107-08.) In Johnson v. World Color Press, Inc. (1986), 147 Ill. App. 3d 746, 749-50, 498 N.E.2d 575, 577-78, the court allowed a retaliatory discharge cause of action when an employee was discharged after complaining to his superiors about certain accounting practices of the employer which the employee believed to be violations of Federal security laws.\nCourts of other jurisdictions have recognized a retaliatory discharge cause of action where the plaintiff alleges he was discharged in retaliation for reporting occupational hazards at his employment to OSHA. Schweiss v. Chrysler Motors Corp. (8th Cir. 1990), 922 F.2d 473, 474; Lepore v. National Tool & Manufacturing Co. (1988), 224 N.J. Super. 463, 468-70, 540 A.2d 1296, 1298-99, aff\u2019d (1989), 115 N.J. 226, 557 A.2d 1371 (per curiam)-, Kilpatrick v. Delaware County Society for the Prevention of Cruelty to Animals (S.P.C.A.) (E.D. Pa. 1986), 632 F. Supp. 542, 546.\nIn this case, plaintiff never actually reported the violation to OSHA before he was terminated. However, that is not fatal to plaintiff\u2019s case. The United States Secretary of Labor has interpreted section 11(c) of the OSH Act as affording protection from discharge to employees who make occupational safety hazard complaints to the employer rather than to the appropriate agency. (29 C..F.R. \u00a7 1977.9(c) (1994) .) In addition, in Wheeler, the plaintiff did not report the Federal nuclear safety violations to the NRC. However, the supreme court stated:\n\"We do not agree with the appellate court that the question whether the facts as alleged involved public policy, or a matter of private concern, depended upon whether a complaint was made to the regulatory authorities. The legislation and the regulations declared the public policy, and the existence of that public policy did not depend upon whether plaintiff had communicated a complaint to the [NRC] or whether its investigation preceded or followed that complaint.\u201d Wheeler, 108 Ill. 2d at 509-10, 485 N.E.2d at 376.\nIn summary, we conclude that plaintiff sufficiently pleaded his discharge violated the clearly mandated public policy preventing the discharge of employees for reporting occupational health hazards. The sources of that policy are the preamble to the 1970 Illinois Constitution and section 11(c) of the OSH Act.\nSince section 11(c) of the OSH Act is a source of public policy, we must also decide whether it preempts plaintiff\u2019s retaliatory discharge cause of action. We hold that it does not. See Fragassi v. Neiburger (1995) , 269 Ill. App. 3d 633, 637-38, 646 N.E.2d 315, 318; McElroy v. SOS International, Inc. (N.D. Ill. 1989), 730 F. Supp. 803, 809; Schweiss, 922 F.2d at 476; Kilpatrick, 632 F. Supp. at 548; Sorge v. Wright\u2019s Knitwear Corp. (E.D. Pa. 1993), 832 F. Supp. 118, 120-21; Lepore, 224 N.J. Super. at 482-84, 540 A.2d at 1306-07; cf. Kerker v. Elbert (1994), 261 Ill. App. 3d 924, 930, 634 N.E.2d 482, 486 (the OSH Act does not preempt the Illinois Structural Work Act (740 ILCS 150/0.01 et seq. (West 1992)).\nFor the foregoing reasons, we reverse the trial court\u2019s order dismissing plaintiff\u2019s third-amended complaint.\nReversed.\nKNECHT, P.J., and McCULLOUGH, J\u201e concur.", "type": "majority", "author": "JUSTICE COOK" } ], "attorneys": [ "Robert G. Kirchner and Andrea Georgelos (argued), both of Lerner & Kirchner, of Champaign, for appellant.", "Stephen L. Corn (argued) and John L. Barger, both of Craig & Craig, of Mattoon, for appellee." ], "corrections": "", "head_matter": "DAVID SHERMAN, Plaintiff-Appellant, v. KRAFT GENERAL FOODS, INC., Defendant-Appellee.\nFourth District\nNo. 4 \u2014 94\u20140772\nArgued February 14, 1995. \u2014\nOpinion filed June 8, 1995.\nRobert G. Kirchner and Andrea Georgelos (argued), both of Lerner & Kirchner, of Champaign, for appellant.\nStephen L. Corn (argued) and John L. Barger, both of Craig & Craig, of Mattoon, for appellee." }, "file_name": "0833-01", "first_page_order": 851, "last_page_order": 858 }