Palmateer v. International Harvester Co.

MR. JUSTICE RYAN, also dissenting:

Although I authored the opinion in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172 , I cannot agree to extend the cause of action for retaliatory discharge approved in that case into the nebulous area of judicially created public policy, as has been done by the opinion in this case. I fear that the result of this opinion will indeed fulfill the prophesy of Mr. Justice Underwood’s dissent in Kelsay. “Henceforth, no matter how indolent, insubordinate or obnoxious an employee may be, *** [the] employer may thereafter discharge him only at the risk of being compelled to defend a suit for retaliatory discharge and unlimited punitive damages ***.” Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 192 .

Kelsay relied on the fact that the legislature had clearly established the public policy that injured workers had a right to file claims for compensation with the Industrial Commission. We there held that discharging the employee for filing such a claim violated that public policy. Here the public policy supporting the cause of action cannot be found in any expression of the legislature, but only in the vague belief that public policy requires that we all become “citizen crime-fighters” (85 Ill. 2d at 132).

Many of our cases state that public policy is to be found in the constitution and the statutes of this State and, when these are silent, in the decisions of the courts. (People ex rel. Nelson v. Wiersema State Bank (1935), 361 Ill. 75, 86 ; Illinois Bankers Life Association v. Collins (1930), 341 Ill. 548, 551 ; Zeigler v. Illinois Trust & Savings Bank (1910), 245 Ill. 180, 193 .) There are other opinions of this court which simply say that the public policy of this State is to be found in its constitution and statutes and make no mention of the role of judicial decisions. (See Smith v. Hill (1958), 12 Ill. 2d 588, 598 ; Knass v. Madison & Kedzie State Bank (1933), 354 Ill. 554, 567 ; People ex rel. Peabody v. Chicago Gas Trust Co. (1889), 130 Ill. 268, 296 .) Whatever the accepted role of the judiciary may be in declaring public policy, it is generally acknowledged that the question of public policy is first and foremost a matter of legislative concern. Nudd v. Matsoukas (1955), 6 Ill. App. 2d 504, 516 , rev’d on other grounds (1956), 7 Ill. 2d 608 ; Fidelity Savings Bank v. Aulik (1948), 252 Wis. 602 , 32 N.W.2d 613 ; Scroghan v. Kraftco Corp. (Ky. App. 1977), 551 S.W.2d 811 .

In Petermann v. International Brotherhood of Teamsters, Local 396 (1959), 174 Cal. App. 2d 184 , 344 P.2d 25 , the court stated that public policy is a vague expression and is not subject to precise definition. In Zeigler v. Illinois Trust & Savings Bank this court also stated that there is no precise definition of public policy. In attempting to define public policy, this court has stated that it is that principle of law which declares that no one may lawfully do that which has a tendency to be injurious to the public welfare or to be against the public good. (People ex rel. Nelson v. Wiersema State Bank (1935), 361 Ill. 75, 86 ; Knass v. Madison & Kedzie State Bank (1933), 354 Ill. 554, 567 .) Stati6ng the converse of this definition, it can be said that public policy favors that which has a tendency to be beneficial to the public welfare or to be for the public good. In view of such a general definition, the correctness of the statement that public policy is a vague expression and is not subject to precise definition cannot be questioned. Certainly, no employer should be subject to suit and unlimited punitive damages based on a nebulous charge that he discharged an employee for doing that which has a tendency to be beneficial to the public welfare or for the public good. To sustain a cause of action for retaliatory discharge, the limitations on the employer’s right to discharge employees must be more precisely defined.

In Geary v. United States Steel Corp. (1974), 456 Pa. 171 , 319 A.2d 174 , a salesman for a steel manufacturer, after having originally complained to his superior, later bypassed his immediate superior and complained to a company vice-president about the safety of a product the company manufactured. The salesman was discharged and thereafter sued his employer in tort, contending he had acted in the best interests of the general public and of his employer. The Supreme Court of Pennsylvania stated that, in essence, the plaintiff contended that his conduct should be protected because his intentions were good. The court noted that no doubt most employees who are discharged could make the same claim. The court affirmed the lower court’s dismissal of the complaint and observed that the praiseworthiness of the plaintiff’s motives does not detract from the company’s legitimate interest in preserving its normal operational procedures from disruption. The court voiced its concern as to the impact of such suits on the legitimate interest of employers in hiring and retaining the best personnel. The court stated that the ever-present threat of suit might well inhibit the making of critical judgments by employers concerning employees’ qualifications.

In Abrisz v. Pulley Freight Lines, Inc. (Iowa 1978), 270 N.W.2d 454 , a discharged employee sued her employer, who had discharged her for writing a letter supporting a fellow employee’s claim for unemployment compensation. In the letter, she severely criticized her employer’s business policies. The employee claims her discharge was for reasons contravening public policy. The Supreme Court of Iowa stated that the plaintiff had not established that her discharge violated public policy. “Courts should not declare conduct violative of public policy unless it is clearly so.” (Abrisz v. Pulley Freight Lines, Inc. (Iowa 1978), 270 N.W.2d 454, 456 .) The court also stated: “In considering this matter we keep in mind the rights of the employer, as well as those of the employee, are important.” Abrisz v. Pulley Freight Lines, Inc. (Iowa 1978), 270 N.W.2d 454, 456 .

In Scroghan v. Kraftco Corp. (Ky. App. 1977), 551 S.W.2d 811 , the plaintiff had been discharged after he announced his intentions to attend law school at night. He sued his former employer, contending that his discharge violated public policy, urging that continued education has been established as a public policy in the United States. The court, after noting that public policy is first and foremost a matter for legislative determination, stated:

“The legislature has not seen fit to establish any policy in this area, and we are not convinced that this is a proper area for the exercise of judicial activism.” Scroghan v. Kraftco Corp. (Ky. App. 1977), 551 S.W.2d 811, 812 .

In Geary, Abrisz, and Scroghan the employees’ conduct can be said to have a tendency to be beneficial to the public welfare or to be for the public good, but the courts refused to declare, by judicial fiat, that discharging employees for such conduct contravened public policy. The citing of these three cases is not intended to be an exhaustive examination of the subject. They are cited to demonstrate that the courts are not willing to create a cause of action for a discharged employee simply because his conduct was praiseworthy or because the public may have derived some benefit from it.

Because of the vagueness of the concept of public policy, most of the jurisdictions that have allowed a discharged employee to maintain a cause of action for retaliatory discharge have required that the public policy against such discharge be clear and well-defined, that the mandate of public policy be clear and compelling, and that there be strong public policy against such discharge. Percival v. General Motors Corp. (E.D. Mo. 1975), 400 F. Supp. 1322 , aff’d (8th Cir. 1976), 539 F.2d 1126 ; Campbell v. Ford Industries, Inc. (1976), 274 Or. 243 , 546 P.2d 141 ; Jones v. Keogh (1979), 137 Vt. 562 , 409 A.2d 581 ; Harless v. First National Bank (W. Va. 1978), 246 S.E.2d 270 ; Geary v. United States Steel Corp. (1974), 456 Pa. 171 , 319 A.2d 174 .

In Becket v. Welton Becket & Associates (1974), 39 Cal. App. 3d 815 , 114 Cal. Rptr. 531 , the employee, as the executor of an estate, had filed a suit against his employer. When he refused to terminate the litigation, he was discharged. He then sued his employer, contending that his discharge was in retaliation for action protected by public policy. The court, in analyzing California law, noted that, in cases allowing such an action, the public policy was evidenced by either a criminal statute or a statute specifically designed to protect the rights of the employee. The court pointed out that there was no articulated public policy through legislative action which was violated by the employer.

In Tameny v. Atlantic Richfield Co. (1980), 27 Cal. 3d 167, 177 , 610 P.2d 1330, 1336 , 164 Cal. Rptr. 839, 845 , Mr. Justice Tobriner, writing for the court, acknowledged that many of the California cases for wrongful discharge were based on statutes which specifically barred discharge for certain conduct. The opinion pointed out, however, that the courts also allowed discharged employees to maintain actions for retaliatory discharge where general statutes affording employees certain rights or privileges “articulated a fundamental public policy which the employer’s discharge clearly contravened.” (Emphasis added.) (Tameny v. Atlantic Richfield Co. (1980), 27 Cal. 3d 167, 177 , 610 P.2d 1330, 1336 , 164 Cal. Rptr. 839, 845 .) The courts in the cases cited above, by referring to clear and well-defined public policy, clear and compelling public policy, strong public policy, and fundamental public policy, acknowledge that public policy may exist in varying degrees. Only in cases where there have been clearly articulated, strong, fundamental, compelling, and well-defined policies can a discharge which contravened these policies give rise to a tort action for retaliatory discharge. The clear articulation of such a policy has almost always been found in legislative pronouncement.

In two cases usually discussed by courts considering retaliatory discharge, recovery was permitted in actions for retaliatory discharge based on “bad faith.” In Monge v. Beebe Rubber Co. (1974), 114 N.H. 130 , 316 A.2d 549 , a female employee was discharged after she refused to go out with her foreman. The New Hampshire Supreme Court held that the termination of employment motivated by bad faith or malice was based on retaliation, constituting a breach of the employment contract. In Fortune v. National Cash Register Co. (1977), 373 Mass. 96 , 364 N.E.2d 1251 , a salesman sued his former employer after he was discharged. The court held that the contract of employment contained an implied covenant of good faith and fair dealing and that a termination not made in good faith constitutes a breach of the contract. These cases are readily distinguishable from the strong-public-policy line of cases, in that, in the last two cases discussed, recovery was sought and allowed for breach of contract and not for a tort, and punitive damages were not sought.

It is indeed praiseworthy that the plaintiff in our case is interested in ferreting out crime. His complaint, however, does not allege conduct on his part that will bring it within the area of any public policy that has been articulated by the legislature. The plaintiff was not discharged for failing to violate or for complying with the requirements of our obstruction-of-justice statute (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 4), or of the section of our statute concerning refusing to aid an officer (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 8). These sections were referred to in the majority opinion. If the plaintiff would have been discharged for such a reason, strong, clear, fundamental articulated public policy would have been contravened and an action in tort would then be appropriate. The complaint, however, does not even allege that a crime had been committed or that the plaintiff reported to the law-enforcement agency that a crime had been committed. It only alleges that plaintiff was discharged because he reported to a law-enforcement agency that an employee of the defendant might be involved in a violation of the criminal code and that he had agreed to assist the law-enforcement agency in gathering further information. It should be remembered that the plaintiff was not a unionized employee, but held a position in management. By assuming the role of a “citizen crime-fighter” undertaking to ferret out crime for the police the plaintiff, through his spying, could seriously affect labor relations of his employer. Also, his conduct, without consulting with the proper management personnel, could impair the company’s internal security program. In other words, the plaintiff here had taken it upon himself to become involved in crime fighting when it was neither required by law, nor by his employment, and obviously was against the wishes of his employer.

By departing from the general rule that an at-will employment is terminable at the discretion of the employer, the courts are attempting to give recognition to the desire and expectation of an employee in continued employment. In doing so, however, the courts should not concentrate solely on promoting the employee’s expectations. The courts must recognize that the allowance of a tort action for retaliatory discharge is a departure from, and an exception to, the general rule. The legitimate interest of the employer in guiding the policies and destiny of his operation cannot be ignored. The new tort for retaliatory discharge is in its infancy. In nurturing and shaping this remedy, courts must balance the interests of employee and employer with the hope of fashioning a remedy that will accommodate the legitimate expectations of both. In the process of emerging from the harshness of the former rule, we must guard against swinging the pendulum to the opposite extreme. In Percival v. General Motors Corp. (8th Cir. 1976), 539 F.2d 1126, 1130 , the court stated:

“It should be kept in mind that as far as an employment relationship is concerned, an employer as well as an employee has rights; ***.”

The district court opinion in Percival stated:

“The courts which have recognized this non-statutory cause of action have done so cautiously, recognizing that a proper balance must be maintained between the employee’s interest in earning his livelihood and the employer’s interest in operating his business efficiently and profitably.” (Emphasis added.) Percival v. General Motors Corp. (E.D. Mo. 1975), 400 F. Supp. 1322, 1323 .

The deteriorating business climate in this State is a topic of substantial interest. A general discussion of that subject is not appropriate to this dissent. It must be acknowledged, however, that Illinois is not attracting a great amount of new industry and business and that industries are leaving the State at a troublesome rate. I do not believe that this court should further contribute to the declining business environment by creating a vague concept of public policy which will permit an employer to discharge an unwanted employee, one who could be completely disruptive of labor-management relations through his police spying and citizen crime-fighter activities, only at the risk of being sued in tort not only for compensatory damages, but also for punitive damages.

I am not alone in my concern over the adverse effect that the loose application of the retaliatory-discharge remedy will have on business. I noted above the concern voiced by the Supreme Court of Pennsylvania in Geary and by the Supreme Court of Iowa in Abrisz. In Pierce v. Ortho Pharmaceutical Corp. (1979), 166 N.J. Super. 335, 341 , 399 A.2d 1023, 1026 , the court stated:

“[T]he employer’s legitimate interests in conducting his business and employing and retaining the best personnel available cannot be unjustifiably impaired.”

The court went on to state:

“In addition the exception [to the general rule] must guard against a potential flood of unwarranted disputes and litigation that might result from such a doctrine, based on vague notions of public policy. Hence, if there is to be such an exception to the at-will employment rule, it must be tightly circumscribed so as to apply only in cases involving truly significant matters of clear and well-defined public policy and substantial violations thereof.” (Emphasis added.) (Peirce v. Ortho Pharmaceutical Corp. (1979), 166 N.J. Super. 335, 342 , 399 A.2d 1023, 1026 .)

In Monge v. Beebe Rubber Co. the New Hampshire Supreme Court, while allowing recovery on a contract theory for a “bad faith” discharge, nonetheless acknowledged the necessity of balancing the interests of employer and employee. The court stated:

“Such a rule affords the employee certain stability of employment and does not interfere with the employer’s normal exercise of his right to discharge, which is necessary to permit him to operate his business efficiently and profitably.” Monge v. Beebe Rubber Co. (1974), 114 N.H. 130, 133 , 316 A.2d 549, 551-52 .

The majority opinion cites Blades, Employment At Will vs. Individual Freedom: On Limiting The Abusive Exercise Of Employer Power, 67 Colum. L. Rev. 1404 (1967). Professor Blades, while promoting an expansion of an employee’s right to sue his employer for wrongful discharge, recognizes the adverse effect of such litigation on the employer’s business:

“ [T] here is the danger that the average jury will identify with, and therefore believe, the employee. This possibility could give rise to vexatious lawsuits by disgruntled employees fabricating plausible tales of employer coercion. If the potential for vexatious suits by discharged employees is too great, employers will be inhibited in exercising their best judgment as to which employees should or should not be retained. *** [T]he employer’s prerogative to make independent, good faith judgments about employees is important in our free enterprise system.” 67 Colum. L. Rev. 1404 , 1428 (1967).

In order to establish the necessary balance between employer and employee interests, I would hold that the employee may maintain an action for retaliatory discharge only when the discharge has been violative of some strong public policy that has been clearly articulated. Usually, that clear articulation would be found in legislative enactment. I do not think that an employer should be compelled to defend a tort action and possibly be forced to pay a disgruntled discharged employee compensatory, and possibly substantial punitive, damages because of a violation of some vague concept of public policy that has never been articulated by anyone except four members of this court.

I therefore respectfully dissent.

MR. JUSTICE MORAN joins in this dissent.