*1 indicated, in her complaint plain we have first amended alleged tiff that the caused the in question defendant Cueto had letter to be to “various circulated in Madi published newspapers generally However, son Elinois.” in its order the trial court made no County, of the finding respect alleged publication newspa with letter trial insofar it We order of the court dismisses pers. reverse respect in the allegations against counts defendant Cueto with newspapers gen to the of the letter to various circulated publication in erally County proceed Madison and remand the cause further to the the letter ings alleged with defend regard publication in circulated Madison newspapers generally ant Cueto to “various concerning here the suf Elinois.” We make no determination County, contention concerning of the of the ficiency specificity pleading effect, limitations, neither ques if of the statute of any, applicable for its having yet tion been trial court consideration. presented need none the other disposition, our we consider is- light of plaintiff presents sues review. remanded. part
Affirmed in reversed part; GOLDENHERSH, JJ., concur. HOWERTON and COMPANY, HARTLEIN, v. ILLINOIS POWER Petitioner-Appellee, DAVID Respondent-Appellant.
Fifth No. 5 - 90-0273 District 11, 1991. March
Opinion filed *3 J., WELCH, dissenting. Roessler, (Carl
Gundlach, Lee, W. Lee Eggmann, Boyle & Belleville Peters, counsel), appellant. R. for and Thomas Belleville, Cueto, Ltd., appellee. Cueto, for of Cueto & Amiel of the court: opinion HARRISON delivered JUSTICE defendant, Power Illinois Plaintiff, Hartlein, is employed by David disability pay temporary total receiving currently and is Company, 1987, Stat. ch. (Ill. Act Rev. Compensation ments the Workers’ under being After injury. a work-related seq.) 138.1 et result of par. and after injury of his he lose his because might threatened elsewhere, plain seek Power to ordered Illinois being by from, restraining company injunction a preliminary tiff obtained inter benefits or him, any rights or alia, discharging “discontinuing for other ordering him to apply privileges employment,” of [his] interlocutory appeal Power this jobs. brings From that order Illinois 307(a)(1)). Ill. 2d R. pursuant Supreme 307(a)(1) (134 Court Rule should grounds plaintiff contends appeal, its law action for bringing have been from a common barred relief claim within of Work purview because his falls the exclusive et seq.). ers’ ch. (Ill. Rev. Stat. 138.1 par. alternative, In the order company argues that circuit court’s should be reversed and the vacated plaintiff failed to the elements necessary prelimi establish warrant follow, nary injunctive relief. For the reasons which we affirm.
The record before us shows that on filed April plaintiff what he denominated as a “Petition Restraining Or- Temporary der[,] Preliminary Injunction, Permanent in the cir- Injunction” cuit court of St. Clair that petition Attached to an affida- County. vit by plaintiff which incorporated by reference “Chronology Events” to the dispute. relevant At the motion plaintiff’s for a preliminary injunction, facts contained in the affidavit were stipulated facts, Illinois Those together Power. with testimony from an Illinois Power Martin, claims named Preston adjuster showed that on June a serious injury sustained foot while working for Illinois Power as an apprentice lineman. As result of this injury, plaintiff was placed on total temporary disability.
Approximately occurred, five months after the injury plaintiff’s treating physician, Chen, Dr. authorized him to work return to on the conditions that to light duty restricted and limited walking that he permitted not be month, do The climbing. following Dr. Maurice Miller examined plaintiff request at the Power Illinois concluded could return to work as a lineman. Illinois then hired a “disability management and rehabilitation” ser- vice known as ConServCo to evaluate plaintiff’s condition and per- form vocational services.” “appropriate Power,
Pursuant instructions a ConServCo coun- selor named Michael McKee arranged to have evaluated by Dr. Wayne. J. Sherwyn Wayne concluded “not ap- did *4 to a pear candidate for rehabilitation to resume his previous work lineman,” activities as a but he recommended that undergo so-called “work hardening” program at the Cole Center for Work-Related In- At the jury. request Power, arrangements Illinois were made for to plaintiff participate in that and he in the program, enrolled pro- in gram the middle of August 1988. Plaintiff’s in the participation the hardening” September “work ended at end program Dr. to to Wayne then authorized him return work. at Illinois on working
Plaintiff resumed October months, He meter reader. After less than two assigned was the again injury pre- to work his foot stop had plaintiff assigned. When him from the he had been completing vented routes once total dis- plaintiff again placed temporary this was happened, ability. Martin, contacted Preston January plaintiff’s attorney
On plaintiff the claims that be as- adjuster, proposed Illinois Power compatible within the would be signed company to other work which accepted by his This Illi- proposal with limitations. was never physical To Martin at the on the nois Power. indicated contrary, concerned, it company that as far as was Illi- Although was jobs capable performing. had which plaintiff work, not return to both the plaintiff nois Power would not could carrier did not compensation workers’ insurance company and its total to him. to making temporary disability payments want continue seek em- plaintiff to plan require was formulated Accordingly, ployment elsewhere. ConServCo, McKee, the from of this Mike counselor part plan, could sent to other a resume which
requested prepare plaintiff however, that he should told plaintiff, McKee prospective employers. Plaintiff’s prospective employers. his injury not mention foot with would attorney plaintiff cooperate McKee advised Power, not lie condition. At regarding physical but he would time, attorney plain- advised Preston Martin plaintiff’s same he company not unless obtained voluntarily resign tiff would to the he every position “exactly respect” another job comparable was also attorney complained held Illinois Power. The that Martin discharge, requested threats of receiving repeated plain- wanted plan company written description send him a tiff to follow. again Martin and ad- contacted attorney subsequently
Plaintiff’s lawby not was required believe that vised him that he did chosen Illinois Power. program rehabilitation undergo a vocational it ordering whether was Martin to indicate asked attorney Plaintiff’s to continue with ConServCo. dealing requesting or merely simply that if the Martin Plaintiff’s advised attorney was denied and that would making request, request related this attorney Plaintiff’s further with ConServCo. cooperate McKee not time, he At the same advised message same McKee.
953 or him not to resumes plaintiff directly contact and told distribute job to on behalf. applications plaintiff’s anyone re- responded plaintiff’s attorney proposed a by sending
McKee attempted called for a search and plan “job place- habilitation which Plain- ment” to outside Illinois Power Co.” be conducted “within and letter dated plan tiff’s McKee’s attorney formally rejected proposed by 7, Thereafter, 11, 1990, a February on Preston Martin sent April 1989. letter by which included a list McKee various prepared letter, other Martin possible job and employers opportunities. avail- requested regarding job that contact these employers Martin directed search ability. begin immediately this and to him contact within two weeks to him of the he companies advise contacted, interviewed, had the persons with whom he and the results of each preliminary interview. At on Martin injunction, testified that plans discharge Illinois had no but plaintiff, that he if did not for other apply jobs, the intended to stop his total temporary payments. disability brought order,
Plaintiff then his for a temporary restraining action injunction permanent injunction. 20, 1990, and On April the circuit granted court temporary a order restraining without notice. order, Under enjoined Illinois Power was from “discharging [plaintiff] or from changing quo, the status or injuring [plaintiff’s] rights, or from rights or discontinuing any benefits or privileges of [plaintiff’s] employment, or from ordering [plaintiff] ap- ply jobs.” for other a Following hearing, the circuit court subsequently issued a preliminary incorporated which these same terms. added, The court it not was “the specifically enjoining Commission, Industrial nor enjoining it Illinois Power from ap- [was] or plying petitioning to the Industrial Commission on any matter.” On this Illinois appeal, Power first contends that order grant ing the preliminary injunction should reversed and that the prelimi nary injunction should be vacated plaintiff’s exclusive remedy lies under the Workers’ Compensation (Ill. 1987, 48, Act Rev. Stat. ch. seq.) 138.1 et par. he is not and entitled to com bring an independent mon disagree. law action. We law, Under is it unlawful for an to discharge employer *** of the employee “because exercise of his rights remedies ***
granted to him Compensation] Workers’ Act.” (Ill. Rev. [the Stat. ch. par. 138.4(h).) a discharge Where such takes place, Workers’ the employee’s sole avenue of Rather, recourse. employee has cause action the em against Motorola, ployer for retaliatory (Kelsay v. Inc. tort discharge. 954 353, 357-59.) here 172, 181-86, 384 N.E.2d Plaintiff
(1978),
Ill.
he
had no
expressly
theory
recovery,
founds his action
this
discharge
claim an
bring
retaliatory
indepen
alternative but
his
brought independently. They
dent
Such
must be
cannot
action.
claims
v.
Marin Ameri
in a
pursued
compensation proceeding.
workers’
Packing
can Meat
Co.
Ill.
562 N.E.2d
v.
282, 288;
Garrison
Industrial Comm’n
83 Ill. 2d
out
claim
retaliatory discharge,
To make
discharge
that the
(1)
discharged, (2)
must
was
plead
prove
(3)
violates a
activities,
in retaliation
*6
v. Roland’s
(Hinthorn
Bloomington,
public
clear mandate of
policy.
Inc.
529,
909, 911.) Illinois
526,
119
2d
519 N.E.2d
Power
(1988),
Ill.
not
here
contends that the first
these elements is
present
To
actually
never
fired. The record shows otherwise.
plaintiff has
been
told
that he
out of a
sure,
the
never
was
directly
plaintiff
Preston Martin
job,
hearing
and at the
Nevertheless,
had
we
terminated.
flatly
plaintiff
denied
been
elsewhere
employment
him seek
agree
requiring
with
at Illinois
with his continued
patently
was
inconsistent
anyone
quit
not
else unless he
Power. Plaintiff could
work
Thus, we
fired,
is no
that he did not
question
quit.
or
and there
was
work with other employ
directing plaintiff
apply
believe that by
119 Ill. 2d
job.
him from his
ers,
discharged
effectively
Illinois Power
531,
at
It is consequence held: our court has supreme explicitly. discharge an magic employee: words required
“There are no for an dis responsibility improper escape cannot employer fired.’ ‘you’re uttered the words never charge simply because has been message employee long employer’s So communi clearly unequivocally is involuntarily terminated re discharge, has an actual there been employee, cated 531, takes.” 119 Ill. at such discharge of the form gardless at 912. 519 N.E.2d that Illinois us, dispute there can be no before
From the record receiving workers’ he was solely because discharged there any Nor is injury. for his work-related benefits compensation Motorola, 172, 384 Inc. 74 Ill. 2d Kelsay v. that under doubt of public pol a clear mandate 353, “violates N.E.2d such a are action retaliatory discharge of a elements Accordingly, all icy.” under redress seeking not limited to present, 48, (Ill. par. Workers’ Act Rev. Stat. ch. 138.1 et Compensation seq.). involving rights actions under the Work retaliatory discharge (Ill. seq.),
ers’ Stat. ch. 138.1 et par. Rev. damages. (See, e.g., seek discharged employees typically money Motorola, 353; Kelsay v. Inc. 74 Ill. 2d Bra gado v. 191 Ill. Cherry Corp. (1989), Electrical Products 643.) damages N.E.2d This case is diffeccccrent.No are obviously claimed. granted only Plaintiff seeks and has been relief. Al though the have not cited and we parties have found cases situation, such a Illinois Power involving injunc does not dispute tive relief in a may appropriate retaliatory discharge action. The if company argues, that even were entitled to pursue here, his common retaliatory discharge law action the circuit court nevertheless erred in granting a because the el preliminary injunction ements to warrant necessary relief were not preliminary injunctive satisfied. we Again disagree.
A preliminary injunction is a provisional remedy granted be fore the of a case on preserve its merits order to the status quo, which is the last peaceable, preceded uncontested status which the pending litigation. In order for preliminary injunction issue, the plaintiff must establish of the by preponderance (1) evidence that he possesses a clear right needing protection, interest (2) ade quate exists, remedy (3) irreparable law harm will result if an in junction granted, is not (4) there a likelihood of success on the addition, merits. In the trial court must the equities balance or relative inconvenience and determine whether parties greater burden *7 will be on the imposed by granting defendant the injunction than on the plaintiff by denying grant it. The decision to injunctive or deny relief rests with the of sound discretion the trial court and will not be disturbed a clear that the showing absent court abused its discretion. (Southern Illinois Medical Business (1989), Associates v. Camillo 190 664, 671-72, 1059, Ill. App. 1064.) 3d 546 N.E.2d We find no abuse of discretion here. matter,
As a note that we while the preliminary injunction from prohibits changing the status “or quo from discontinuing any rights privileges or benefits or of [plaintiff’s] the also employment,” expressly provided court that it was “not en joining Commission, the it Industrial nor Illinois Power enjoining [was] from or the applying petitioning to Industrial Commission on mat any ter.” in (Emphasis original.) limiting language, view this we do not believe that the require circuit court intended to Illinois Power to
956 hear making disability payments pending
continue total temporary a re discharge claim. Such ing plaintiff’s retaliatory on the merits of total disabil improper. temporary would have been Whether quirement up made is a which can be taken ity payments question only should be Act Compensation (Ill. in the context a claim under the Workers’ 1987, 48, seq.). Temporary disability ch. 138.1 et total par. Rev. Stat. retaliatory recovered in an action for payments independent cannot be 191 Ill. (1989), v. Electrical Products discharge. Bragado Cherry Corp. 136, 140, 643, 3d 547 N.E.2d App. is view, effect of the circuit court’s sim
In our discharging plaintiff, restrain Illinois Power from ply preliminarily to him, any to or his status threatening discharge altering is Gen construed, entirely proper. As so the circuit court’s order way. such as discharge employee an an at-will erally, employer may v. Round Lake (Veit Village for reason or for reason all. 145, 521 (1988), 147.) Correspond 167 Ill. 3d N.E.2d App. cannot, court, to retain compelled an decree be ingly, employer (Kurle him after fired. v. being another in his service or to reinstate 45, 53, 411 89 Ill. 3d Evangelical (1980), App. Association Hospital Motorola, 326, (1978), v. 74 Ill. 332.) Kelsay The effect of Inc. N.E.2d ex 172, 353, however, is to create an progeny, 384 N.E.2d and its discharge would to the “at-will” rule where ception common law (Palmateer v. Interna public policy. mandated clearly contravene 128, 876, 124, 878.) Harvester Co. 85 Ill. 2d tional as a cer exception, employees plaintiff possess Pursuant to this such discharged or even tain and clear under Illinois law not be right exercising their under Work discharge rights threatened -with seq.). Act Rev. Stat. ch. 138.1 et (Ill. par. ers’ Compensation damages. a claim for Accord Kelsay only money itself involved question our court had no occasion to on the ingly, supreme pass grant pre it also relief might appropriate injunctive whether discharge an from or threatened with employee being discharged vent pending reinstated discharged employee or to that a require that deci view, nothing in litigation. In our outcome of the Associa Evangelical Hospital Kurle v. precludes (See sion such relief. (Seidenfeld, 45, 55-56, tion 89 Ill. N.E.2d that it be anomalous J., we believe would dissenting).) contrary, To the discharging does, employer prohibited an say, Kelsay under asserting rights his discharge employee threatening 138.1 par. Rev. Stat. ch. (Ill. Workers’ to obtain right seq.), deny employee et but then a discharge the threat of such stop relief to or to prevent
957 him to seek after simply monetary compensation and to require has taken place. has the to suggests right Illinois Power fact, seek after the he has an compensation adequate such monetary at if remedy irreparable injunctive law and will not suffer harm relief so. has is denied. This is not In a commercial context it been held showing a of harm of irreparable proof legitimate is related a established, protectible business interest. Once a interest has in been to the will jury presumed be follow if interest is not (U-Haul v. protected. (1980), Co. Hindahl 90 Ill. 3d 413 App. held, N.E.2d The courts thus for 192.) example, have that the loss of and the customers and sales threat of the continuation of such legitimate losses a business interest is sufficient itself to show that a will suffer irreparable injury protected unless by Books, court. Inc. v. Eagle 407, 411, Jones 130 Ill. 474 App. 474 N.E.2d cert. denied U.S. 88 L. Ed. 2d Ct. 106 S. here, course, business,
Plaintiff of does own a nor does he operate enterprise profit. commercial He is an ordinary working man wages who relies on the through earns his labor to support indicated, family. we have previously he has a pro clearly tected interest under the Workers’ Act not to dis be or with charged threatened discharge. view, our there is no princi pled according basis this interest less importance than the commercial interests of a business proprietor. Accordingly, the viola tion alone, of interest is sufficient, standing harm. irreparable establish
Moreover, do not we believe that plaintiff can be said to have adequate law. An remedy law, adequate remedy at existence of a grant relief, clear, which will one preclude is which is and as and complete practical justice efficient the ends its as the prompt (Tamalunis administration proposed equitable remedy. v. City Georgetown (1989), 173, 189-90, 542 Ill. N.E.2d 402, 413.) wages may susceptible While lost and benefits be of calcula tion and can be compensated monetarily, the loss of more than loss of For paycheck working benefits. people, such define plaintiff, self-worth and helps personal gives It identity. life meaning and The dignity. loss such values cannot readily amount, translated into a once gone, may dollar be difficult they recapture. Indeed, people stigma some never recover from sense defeat For such in engender. and failure unemployment may dividuals, a damage compensation. award is scant aside, however, such considerations
Even if we were to put legal remedy that a to conclude compelled we would nevertheless *9 discharg view, against public policy In our not adequate. would be Compen the Workers’ rights their under exercising ing employees dam through after-the-fact protected simply be fully sation Act cannot effect, absolutely must be full give employers actions. To age policy if the done only and this can be discharge, from prohibited attempting purging them from restraining to issue orders willing courts are rosters who employees their employment threatening purge benefits. compensation their to workers’ rights have asserted If the merits. likelihood of success on Plaintiff has shown a issued, plaintiff relief had not burden preliminary injunctive have been of his livelihood would The source great. would have been legally hand, injunction placed of the other issuance lost. On the forced simply The was on Illinois Power. cognizable burden reasons, conclude we must foregoing For the do what the law requires. plaintiff’s in granting its discretion court did not abuse that the circuit granting the order Accordingly, injunction. motion for a affirmed. injunction Affirmed.
RARICK, P.J., concurs. WELCH, dissenting:
JUSTICE at adequate remedy I has an believe I dissent. respectfully retaliation for Illinois Power in is discharged by in the event he law Act. Compensation under the Workers’ his exercising rights in retal- relief right injunctive recognized before courts have never damages. monetary cases, awarded plaintiffs but have discharge iatory for loss of compensate plaintiff damages adequately I can money think an ade- therefore has that he and and rights his benefits employment relief. law, precluding at quate remedy App. 90 Ill. v. Hindahl on U-Haul Co. relying The majority, Ill. Books, (1985), 130 Inc. v. Jones Eagle N.E.2d and irrepara suffer will holds his pro violation is denied because if the damages ble his exercising in retaliation discharged interest not tectable to establish Act is sufficient the Workers’ rights under cases, injury However, irreparable in those both irreparable injury. exist be concludes, found to but was the majority presumed, busi loss of future suffer, specifically did damages plaintiffs cause the Thus, ness, were not capable adequate computation. plaintiffs in had no adequate remedy irreparably law and would have been the denial of an jured by injunction.
In case, the instant plaintiff’s damages adequate are capable computation. long Courts have for loss of compensated rights If, doing benefits and have had no trouble so. after action, merits of plaintiff’s the court deter- retaliatory case, mines that plaintiff has can ade- established quately fully compensated in for his loss of em- money damages ployment benefits.
The majority argues compensated cannot be mone tarily for his loss of “self-worth and and his loss of personal identity” “meaning dignity” his life. I that an of punitive believe award damages, cases, allowable in retaliatory discharge goes long to way ward event, for these compensating “damages” “losses.” such are speculative and of a proof speculative is not possibility injury sufficient to justify injunction. Marriage In re Strauss *10 183 Ill. App.
Finally, argues majority legal exists adequate remedy because the public policy against discharging employees exercising their rights under the Workers’ fully cannot be protected simply through actions for money damages. Allowing awards of punitive damages protects the In- adequately public policy. deed, punitive damages are awarded for specific purpose.
Because law, has an adequate I dissent. remedy McKEOWN, Minor, ASHLEY McKeown, Karla her Mother and Next Friend, Plaintiff-Appellant, HOMOYA, Flight v. DAVID d/b/a
Lounge, Defendant-Appellee. Fifth District No. 5 - 90-0347 11, 1991. Opinion filed March