LINDA KURLE, Plaintiff-Appellee, v. EVANGELICAL HOSPITAL ASSOCIATION, d/b/a Good Samaritan Hospital, Defendant-Appellant. (ARGONAUT INSURANCE COMPANY, Defendant.)
Second District No. 80-486
Second District
September 29, 1980
Oliver W. Gregory, William J. Holloway, and William R. Kucera, all of Botti, Marinaccio & Wilkinson, of Wheaton, and Leon M. Despres and Thomas H. Geoghegan, both of Chicago, for appellee.
Mr. JUSTICE VAN DEUSEN delivered the opinion of the court:
Defendant hospital takes this interlocutory appeal from an order of the trial court granting the motion of the plaintiff for a preliminary injunction and ordering that plaintiff‘s employment be reinstated by the defendant hospital including back pay and benefits which she enjoyed prior to her suspension on May 28, 1980.
Plaintiff was discharged from her employment as a nurse by the defendant hospital on June 13, 1980. Thereafter, plaintiff filed a four-count complaint and a petition for preliminary injunction. In count I, she sought both a preliminary and permanent injunction restraining and enjoining the defendant and its agents, servants and employees from preventing her from entering defendant‘s premises known as the Good Samaritan Hospital or from interfering with her work and practice there as a nurse, her pay, past and future, and all other employee benefits she enjoyed. Counts II, III and IV sought money damages, both compensatory and punitive, for injuries to her present and future ability to support herself and practice her profession as a nurse and for damages to her reputation as a competent nurse.
The motion to dismiss count I of the complaint and the petition for a preliminary injunction were heard and in effect denied by the trial court. The court then ascertained that defendant desired to stand on its motion to dismiss and did not intend to file an answer to the allegations of count I or to the petition. The judge then stated that he was ordering defendant hospital to reinstate the plaintiff with back pay, but then proceeded to hold an evidentiary hearing. Such an evidentiary hearing under these circumstances was improper, since it is the law in this State, that, on a motion for a temporary injunction, where the defendant has not answered the complaint and where issues have not been joined, the court should not receive or consider evidence or affidavits. (H.K.H. Development Corp. v. Metropolitan Sanitary District (1964), 47 Ill. App. 2d 46, 50, and cases cited therein.) However, since defendant participated in the hearing, defendant has waived any objection it might have had to the hearing, and the court could properly consider the evidence adduced in deciding whether to grant the preliminary injunction. See Filter Dynamics International, Inc. v. Astron Battery, Inc. (1974), 19 Ill. App. 3d 299, 317.
At the conclusion of the hearing, the court entered its order which contained the single finding that plaintiff was not afforded a hearing as set forth in
Count I of the complaint purports to allege a cause of action for injunctive relief arising basically from: (1) the defendant‘s violation of its own rules regarding suspension and termination of its employees as set forth in its employees’ handbook and (2) failure to comply with the requirements of
No action of a disciplinary nature which is predicated on charges alleging unethical or unprofessional conduct of a person who is a registered professional nurse or a licensed practical nurse and which can be reasonably expected to affect adversely that person‘s maintenance of his present, or his securing of future, employment as such a nurse may be taken by the Department, by any association or
by any person unless the person against whom such charges are made is afforded the right to be represented by legal counsel of his choosing and to present any witness, whether an attorney or otherwise to testify on matters relevant to such charges. ( Ill. Rev. Stat. 1979, ch. 111, par. 3421 .)
Plaintiff contends that the legislature, in enacting this section, intended that it apply to any person or association as well as the Department of Registration and Education. She argues that the statute prevents any association or person from taking any disciplinary action, predicated on charges alleging unethical or unprofessional conduct of a registered professional or licensed practical nurse, that could reasonably be expected to adversely affect the nurse‘s securing of employment, unless the nurse is afforded the right to be represented by legal counsel of his choosing and to present any witness, whether an attorney or otherwise, to testify in matters relevant to such charges. Under the plaintiff‘s interpretation of this section, its provisions are applicable to actions by employers, both public and private, in suspending, discharging or otherwise disciplining an employee where the charge is based on unethical or unprofessional conduct. The defendant contends, to the contrary, that
We have carefully considered
Plaintiff contends that
An initial reading of the Act, confined solely to a consideration of the provision at issue, gives credence to plaintiff‘s contentions; but, a reading of
A review of the legislative history of the Act strengthens our interpretation. The
In 1965,
There are other reasons that militate against plaintiff‘s position that the language of
Further, the
“No Act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.” (
Ill. Const. 1870, art. 4, §13 .)
The formal title of the
We also note that, at the time
The trial court erred in finding that the defendant hospital violated the provisions of
The trial court also found, as another basis for granting the preliminary injunction, that plaintiff was not afforded a hearing as set forth in defendant‘s employees’ handbook. While plaintiff, in this court, contends that the employees’ handbook constituted a part of the employment contract between plaintiff and defendant, and asserts that the court found that defendant had breached the employment contract, an examination of count I of the complaint discloses that plaintiff did not in any way allege that the provisions of the employees’ handbook constituted a part of the employment contract. Moreover, the record does not support plaintiff‘s contention that the trial court found that defendant hospital breached the employment contract. Regarding this issue, count I of plaintiff‘s complaint simply asserts the existence of the employees’ handbook and the provision thereof, and alleges that the plaintiff‘s rights were violated by the failure of defendant to follow them. Similarly, the trial court found merely that defendant had failed to afford plaintiff a hearing required by the employees’ handbook. The record contains no support for the contention that the trial judge, as one basis for awarding the preliminary injunction, found that defendant breached plaintiff‘s employment contract. Plaintiff concedes, in her brief, that, absent contractual or statutory provisions, an employer may discharge an employee without cause. Pleasure Driveway & Park District v. Jones (1977), 51 Ill. App. 3d 182, 190.
Having found that the provisions of
Even if plaintiff had sufficiently alleged a cause of action for breach of her employment contract, we find that the trial court in this case still erred in granting the motion for preliminary injunction. The requirements for the issuance of a preliminary injunction are well established. (Crest Builders, Inc. v. Willow Falls Improvement Association (1979), 74 Ill. App. 3d 420, 422. See Bromberg v. Whitler (1977), 57 Ill. App. 3d 152, 155.) One of the requirements is that plaintiff must have no adequate remedy at law for her injuries or damages. This requirement lends support to our conclusion that the trial judge erred in issuing a preliminary injunction. Plaintiff sought a preliminary injunction restraining and enjoining defendant from preventing her entering defendant‘s premises or from interfering with her work on its premises as a nurse, with pay and other benefits. But the trial court‘s order does not so enjoin or restrain defendant from preventing plaintiff from entering the premises of defendant hospital or resuming her work. The trial court‘s order required that plaintiff‘s employment be reinstated, and that she be granted the back pay and benefits she enjoyed prior to her May 28, 1980, suspension. The comments of the trial judge in the record make clear that, by his order, he intended that plaintiff be reinstated for the single purpose of receiving back pay and benefits. Such relief is purely economic for which plaintiff has an adequate remedy at law; such limited reinstatement, as ordered by the trial court, provides no protection for plaintiff‘s good name and reputation, but provides her only monetary relief. (See Bromberg v. Whitler (1977), 57 Ill. App. 3d 152, 156.) The presence of an adequate remedy at law is an additional basis for our finding that the trial court erred in granting the preliminary injunction.
There is yet another reason why the trial court should have granted the motion to dismiss count I of the complaint and should have denied injunctive relief. Count I of the complaint seeks only the equitable remedy of injunctive relief, both temporary and permanent. It seeks to have the court order defendant employer to continue to employ the plaintiff. At common law it was recognized that a person cannot, by decree of court, be compelled to retain another in his service. (Reid Ice Cream Co. v. Stephens (1896), 62 Ill. App. 334, 339.) The policy underlying this principle arose from the reluctance of courts to interfere with and enforce any type of personal relationship. Wollensak v. Briggs (1887), 119 Ill. 453; Cowen v. McNealy (1950), 342 Ill. App. 179; Rabinovich v. Reith (1905), 120 Ill. App. 409.
This rule of law has recently been applied with continued vigor. In
“Plaintiff‘s contract with defendant * * * was a personal service contract. It is well settled that, with reference to such contracts, * * * a court should not compel an employee to work for his employer, nor compel an employer to retain an employee in his service. [Citations.]” (73 Ill. App. 3d 901, 904.)
The court reasoned that it would be impractical, if not impossible, for a court to provide the continuous supervision necessary to enforce a personal service contract, especially where such services require special skill, knowledge, judgment or discretion. (73 Ill. App. 3d 901, 904.) As further support for its finding, the court stated that, since personal service contracts often require a relationship of cooperation and trust between the parties, as a matter of public policy, courts avoid the friction that would develop by compelling an employee to work, or an employer to hire or to retain someone against his wishes. 73 Ill. App. 3d 901, 905.
An examination of the cases cited by plaintiff in support of her contention that, today, Illinois courts have the equitable power to reinstate an employee who has been wrongfully discharged, reveals that they are distinguishable from the present case. People ex rel. Jaworski v. Jenkins (1978), 56 Ill. App. 3d 1028, Sola v. Clifford (1975), 29 Ill. App. 3d 233, and Corbett v. City of Chicago (1944), 323 Ill. App. 429, all involved actions by public bodies or public officials in wrongfully discharging public employees. The authority of a court to order public bodies or public officials to carry out their public or statutory duty is no support for the contention that a private employer can be compelled to do so.
We recognize, however, that there are certain areas of the law where a legislature has required reinstatement of an employee by a private employer, e.g., when an employee is discriminated against because of race, color, creed or sex. (See, e.g.,
“The rule, we think, is without exception that equity will not compel the actual, affirmative performance by an employee of merely personal services, any more than it will compel an employer
to retain in his personal service one who, no matter for what cause, is not acceptable to him for service of that character.”
Accordingly, we reverse and vacate the order of June 27, 1980, granting plaintiff‘s preliminary injunction and remand the cause for further proceedings consistent with this opinion.
Reversed and remanded.
NASH, J., concurs.
Mr. PRESIDING JUSTICE SEIDENFELD, specially concurring:
Although I agree with the result reached in the court‘s opinion, I write separately because of my disagreements with some of its broad conclusions. The majority seems to state that a discharged employee always has an adequate remedy at law if money damages is the only relief sought. However, there may be situations where due to the circumstances of the discharge the employee cannot find other employment and would suffer severe deprivation if preliminary injunctive relief were not available. In Sampson v. Murray (1974), 415 U.S. 61, 92 n. 68, 39 L. Ed. 2d 166, 187 n. 68, 94 S. Ct. 937, 953 n. 68, the Supreme Court held open the possibility that in “extraordinary cases” irreparable injury might be found in discharge cases so as to warrant preliminary relief.
In Hoffman v. Wilkins (1971), 132 Ill. App. 2d 810, the court held that injury to reputation and loss of income occasioned by termination constituted irreparable injury and affirmed a preliminary injunction ordering reinstatement with back pay. Even though Hoffman was a public employment case, the question of adequacy of the legal remedy and existence of irreparable injury should not be answered differently in the private employment context where the discharged employee has a clear right to be protected.
The majority also implies that private employees never have a right to reinstatement except where antidiscrimination or other statutes impose duties on the employer. I would not foreclose the possibility that in appropriate circumstances an employee discharged in breach of an employment contract could be reinstated pending final determination on the merits. The common law rule that courts of equity will not enforce personal services contracts has encountered so many exceptions (public employment; discriminatory discharges based on race, sex, color, creed, or handicap; collective bargaining agreements), that to some extent the exceptions have swallowed the rule. The remedy of reinstatement must be granted with caution, but should not be barred solely because the underlying right is contractual rather than statutory.
Because plaintiff has not stated a cause of action and due to the countervailing interest of defendant in the circumstances of this case, I concur in the result.