Petition for Writ of Certiorari — Caterpillar Tractor Co. v. Wheeler

' ') Supreme Court, U.S.

IN THE JOSEPH F SPAN'OL, JR.

ces

cn

Supreme Court of the nites State

JANUARY TERM, 1986

CATERPILLAR TRACTOR CO.,

Petitioner,

,

WILLIAM WHEELER and JUDITH WHEELER,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

GERALD D. SKONING*

J. STEPHEN Poor

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON

55 East Monroe Street

Suite 4200

Chicago, Illinois 60603

(312) 346-8000

MICHAEL I. CAMPBELL

JON D. ROBINSON

HULL, CAMPBELL & ROBINSON

500 Millikin Court

Decatur, Illinois 62525

(217) 429-4296

Attorneys for Petitioner

* Counsel of record.

Pandick Midwest, Inc., Chicago © (312) 733-6000

QUESTION PRESENTED

Whether Congress’ extensive regulation of nuclear safety

issues, including the creation of an explicit remedy for employ-

ees discharged because of their concern over nuclear safety

(Energy Reorganization Act, 42 U.S.C. § 5851 (1982)), pre-

empts the state common law tort created by the Illinois

Supreme Court to remedy the identical conduct prohibited by

the federal act.

STATEMENT REQUIRED BY RULE 28.1

Caterpillar Tractor Co. is not a subsidiary or affiliate of a

publicly owned corporation and, therefore, has no parent

corporation. In addition to wholly owned subsidiaries, Cater-

pillar has ownership interests, either directly or through wholly-

owned subsidiaries, in the following:

Caterpillar Tractor Co., Ltd.

Caterpillar-Mitsubishi, Inc.

Tractor Engineers, Ltd.

P.T. Natra Raya

Equipment Financing Associates

S.A. Des Foundries Aet Seaieries De Paris-Seine

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED .............::::sesseseeseteeeseeseteteess

STATEMENT REQUIRED BY RULE 28.1 .............5+. T

TABLE OF CONTENTS ............:::ccleccceeeeeeeeneeeeeeteeeeeeeeees ill

TABLE OF AUTHORITIES ...............::::eceecsseeeeeeeeeeeeteens iv

OPINION BELOW .............ccccceceeeeeeseeeeeeenteneeeeeeeeeeeeeeeens l

JURISDICTION ..............cccccccccccsscccesscrensscnsseneseeseeceessennes 2

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED .................:::cceeeeeeeeeeeeeneeees aaaseonaas 3

STATEMENT OF THE CASE............... iikeaskheelaescaxenntonss 6

REASONS FOR GRANTING THE WRIT..............-.5. 8

|. THE ILLINOIS SUPREME COURT'S DECI-

SION CONFLICTS WITH PRIOR DECISIONS

OF THIS COURT .................c.cccccccececesssssercssseeeeeees 8

Il. RESOLUTION OF THIS CONFLICT IS A

MATTER OF GREAT NATIONAL IMPOR-

APPENDIX

lv

TABLE OF AUTHORITIES

Cases

Allis-Chaimers v. Lueck, __ U.S. ____. 105 S.

ae ID IES icicectisinrestennbaunstecinekcatn cot

Amalgamated Ass'n of Street Employees v. Lock-

ridge, 403 U.S. 274 (1971) cooccccccccccceccceccccceeeccecce.

Fidelity Federal Savings & Loan Ass'n v. de le

Coesta, US. 102 S. Ct. 3014 (1982).

Massachusetts Mutual Life Ins. Co. v. Russell.

US. » 105 S. Ct. 3085 (1985)...

Pacific Gas & Electric Co. v. State Energy Comm.,

FR SEs SHE WOOD iackissecinieaeoneneaccalouan,

San Diego Bldg. Trades Council v. Garman, 359

Re NE coda ce Se Nee

Wheeler v. Caterpillar Tractor Co., 108 Il. 2d 502.

nS SOMME BPE A WWD Prsrntitarckisxcremscinc cuca,

2 ane © OOS TPE ce Oe eee

a0 USC. § 3606................ at aatilshheicn ahibidhnntaoetninsasiise

a

IN THE

Supreme Court of the Anited States

JANUARY TERM, 1986

CATERPILLAR TRACTOR CO.,

Petitioner,

v.

WILLIAM WHEELER and JUDITH WHEELER,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

Petitioner, Caterpillar Tractor Co. (hereinafter “Cater-

pillar” or the “Company’”’), respectfully prays that a Writ of

Certiorari issue to review a decision and order of the Illinois

Supreme Court.

OPINION BELOW

The opinion of the Illinois Supreme Court is reported sub

nom, Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502, 485

N_E.2d 372 (1985) and is reproduced in Appendix A to this

Petition. The opinion of the Illinois Appellate Court ts reported

at 123 Ill. App. 3d 539, 462 N.E.2d 1262 (1984) and Is

reproduced in Appendix B to this Petition. The opinion of the

Circuit Court of Macon County, Illinois, is unreported and ts

reproduced in Appendix C to this Petition.

tv

JURISDICTION

The judgment of the Illinois Supreme Court was entered

on October 18, 1985. Petitioner filed a timely Petition for

Rehearing on November 8, 1985. The Petition was denied in

an Order dated December 2, 1985, which is reproduced in

Appendix D. This petition was filed within ninety (90) days of

that date. The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Constitutional provision involved in this matter is the

Supremacy clause of the Constitution, Art. VI, cl. 2. which

provides as follows:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof: and all Treaties

made, or which shall be made, under the Authority of the

United States, shall be the supreme Law of the Land: and

the Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.

The primary statutory provision involved is the Atomic

Energy Act, (as amended Energy Reorganization Act), 42

U.S.C. § 5800 et seg. Specifically, this case involves the

following provision of that Act (Section 210, 42 U.S.C. § 5851

( 1982) ):

§ 5851. Employee protection

(a) Discrimination against employee

No employer, including a Commission licensee. an

applicant for a Commission license, or a contractor or a

subcontractor of a Commission licensee or applicant, may

discharge any employee or otherwise discriminate against

any employee with respect to his compensation, terms.

conditions, or privileges of employment because the em-

ployee (or any person acting pursuant to a request of the

employee )—

(1) commenced, caused to be commenced, or is

about to commence or cause to be commenced a

proceeding under this chapter or the Atomic Energy

Act of 1954, as amended [42 U.S.C.A. § 2011 et seq. |

or a proceeding for the administration or enforcement

of any requirement imposed under this chapter or the

Atomic Energy Act of 1954, as amended:

3

(2) testified or is about to testify in any such

proceeding or;

(3) assisted or participated or is about to assist or

participate in any manner in such a proceeding or in

any other manner in such a proceeding or in any other

action to carry out the purposes of this chapter or the

Atomic Energy Act of 1954, as amended [42 U.S.C.A.

§ 2011 et seq. }.

(b) Complaint, filing and notification

(1) Any employee who believes that he has been

discharged or otherwise discriminated against by any

person in violation of subsection (a) of this section

may, within thirty days after such violation occurs, file

(or have any person file on his behalf) a complaint

with the Secretary of Labor (hereinafter in this

subsection referred to as the “Secretary”) alleging

such discharge or discrimination. Upon receipt of

such a complaint, the Secretary shall notify the person

named in the complaint of the filing of the complaint

and the Commission.

(2)(A) Upon receipt of a complaint filed under

paragraph (1), the Secretary shall conduct an in-

vestigation of the violation alleged in the complaint.

Within thirty days of the receipt of such complaint, the

Secretary shail compiete such investigation and shall

notify in writing the complainant (and any person

acting in his behalf) and the person alleged to have

committed such violation of the results of the in-

vestigation conducted pursuant to this subparagraph.

Within ninety days of the receipt of such complaint

the Secretary shall, unless the proceeding on the

complaint is terminated by the Secretary on the basis

of a settlement entered into by the Secretary and the

person alleged to have committed such violation, issue

an order either providing the relief prescribed by

subparagraph (B) or denying the complaint. An

order of the Secretary shall be made on the record

4

after notice and opportunity for public hearing. The

Secretary may not enter into a settlement terminating

a proceeding on a complaint without the participation

and consent of the complainant.

(B) If, in response to a complaint filed under

paragraph (1), the Secretary determines that a viola-

tion of subsection (a) of this section has occurred, the

Secretary shall order the person who committed such

_ violation to (1) take affirmative action to abate the

violation, and (11) reinstate the complainant to his

former position together with the compensation (in-

cluding back pay ), terms, conditions, and privileges of

his employment, and the Secretary may order such

person to provide compensatory damages to the com-

plainant. If an order is issued under this paragraph,

the Secretary, at the request of the complainant shall

assess against the person against whom the order ts

issued a sum equal to the aggregate amount of all

costs and expenses (including attorneys’ and expert

witness fees) reasonably incurred, as determined by

the Secretary, by the complainant for, or in connection

with, the bringing of the complaint upon which the

order was issued.

(c) Review \

(1) Any person adversely affected or aggrieved

by an order issued under subsection (b) of this section

may obtain review of the order in the United States

court of appeals for the circuit in which the violation,

with respect to which the order was issued, allegedly

occurred. The petition for review must be filed within

sixty days from the issuance of the Secretary's order.

Review shall conform to chapter 7 of Title 5. The

commencement of proceedings under this subpara-

graph shall not, unless ordered by the court, operate

as a stay of the Secretary's order.

‘”

(2) An order of the Secretary with respect to

which review could have been obtained under para-

graph (1) shall not be subject to judicial review in any

criminal or other civil proceeding.

(d) Jurisdiction

Whenever a person has failed to comply with an order

issued under subsection (b) (2) of ihis section, the Secre-

tary may file a civil action in the United States district court

for the district in which the violation was found to occur to

enforce such order. In actions brought under this subsec-

tion, the district courts shall have jurisdiction to grant all

appropriate relief including, but not limited to, injunctive

relief, compensatory, and exemplary damages.

(e) Commencement of action

(1) Any person on whose behalf an order was

issued under paragraph (2) of subsection (b) of this

section may commence a civil action against the

person to whom such order was issued to require

compliance with such order. The appropriate United

States district court shall have jurisdiction, without

regard to the amount in controversy or the citizenship

of the parties, to enforce such order.

(2) The court, in issuing any final order under

this subsection, may award costs of litigation (in-

cluding reasonable attorney and expert witness fees )

to any party whenever the court determines such

award is appropriate.

(f) Enforcement

Any nondiscretionary duty imposed by this section

shall be enforceable in a mandamus proceeding brought

under section 1361 of Title 28.

(g) Deliberate violations

Subsection (a) of this section shall not apply with

respect to any employee who, acting without direction

from his or her employer (for the employer's agent),

deliberately causes a violation of any requirement of this

chapter or of the Atomic Energy Act of 1954, as amended

[42 U.S.C.A. § 2011 et seq. }.

STATEMENT OF THE CASE

This Court has long tried to delineate the extent to which

state law is preempted by federal legislation. This effort has

assumed particular importance in the field of nuclear safety

issues. See Pacific Gas & Electric Co. v. State Energy Comm.,

461 U.S. 190 (1983); Silkwood v. Kerr-McGee Corp., 464 U.S.

238 (1984). The instant case again presents the critical

question of whether Congress has left room for state action on

issues Of nuclear safety which are extensively regulated by

federal statute (Energy Reorganization Act, 42 U.S.C. § 5851

(1982) (the “Act’’)). Specifically, this case raises the question

of whether, on the question of nuclear safety, federal interests

are paramount or whether state common law can provide a

separate remedy for the discharge of an employee allegedly

because of complaints that the company failed to comply with

federal safety regulations for radioactive materials, conduct for

which the federal statute provides an express remedy. The

Illinois Supreme Court’s resolution of this question conflicts

with the Supremacy clause of the Constitution, with prior

decisions of this Court and raises important questions of

national policy.

The facts in this case are simple and straightforward.

Caterpillar Tractor Co. operates a production facility in Deca-

tur, Illinois. Respondent, William Wheeler, was employed in

the Company’s X-ray department as a radiographer. This

department was one aspect of Caterpillar’s quality control

program. In 1979, the Company began to convert its quality

control operations from electrically generated radiation to live

source radiation using Cobalt 60 as the radiation source. As a

radiographer, Wheeler was expected to use the Cobalt 60 unit

for quality control purposes.

Wheeler, however, alleges that the installation of the unit

by Caterpillar was not in compliance with Nuclear Regulatory

Commission safety regulations and that he was not properly

trained to handle a live source of radioactivity. Wheeler

claimed that the Cobalt 60 unit was unsafe and refused to work

in the area. According to the allegations of the Complaint,

Wheeler repeatedly sought to be transferred from the X-ray

department after installation of the Cobalt 60 unit. When no

transfer was forthcoming and Wheeler continued to refuse to

work in the area, he was terminated from employment with

Caterpillar.

Wheeler filed a complaint in Illinois state court claiming

that he was discharged from his employment as the result of his

complaints to his employer about nuclear safety violations. He

argued that a number of violations of the Nuclear Regulatory

Commission rules had occurred regarding the installation and

operation of the Cobalt 60 unit. In the words of the Illinois

Supreme Court, Wheeler alleged that his discharge “resulted

from his employer’s violation of federally mandated safety

codes.” (App. A 3). According to Wheeler, this discharge

constitutes tortious conduct under Illinois state common law.

The Illinois state trial court dismissed the complaint. That

dismissal was affirmed by the Illinois Appellate Court for the

Fourth District.

The Illinois Supreme Court reversed the lower courts and

reinstated the case. The Court recognized that the federal

Energy Reorganization Act (formerly the Atomic Energy Act)

arguably provided a remedy for the alleged unlawiu! conduct.

However, misinterpreting this Court’s decisions in Pacific Gas &

Electric Co. v. State Energy Resources Conservation & Develop.

Comm., 461 U.S. 190 (1983), and Silkwood v. Kerr-McGee

Corp., 464 U.S. 238 (1984), the Illinois Supreme Court con-

cluded that the Act did not preempt the field of nuclear

regulation and that the instant action was not preempted

because it did not conflict with the Act. The Illinois Court

concluded that:

The protection of the lives and property of citizens from

the hazards of radioactive material is as important and

fundamental as protecting them from crimes of violence,

8

and by the enactment of the legislation cited [the Act],

Congress has effectively declared a clearly mandated pub-

lic policy to that effect. We hold, therefore, that Counts III

and VI stated a cause of action for retaliatory discharge

which contravened the clearly mandated public policy.

108 Ill. 2d at _-__, 485 N.E.2d at 377.

REASONS FOR GRANTING THE WRIT

This case presents the question of whether the extensive

federal regulation of nuclear safety preempts the Illinois state

court’s creation of a separate common law remedy for conduct

regulated by that federal enactment and where, moreover, the

statute creates an express remedy for the conduct involved.

This case specifically arises under the successor to the Atomic

Energy Act, the Energy Reorganization Act, 42 U.S.C. § 5851

(1982), which is one of seven virtually identical anti-retaliation

provisions found in various federal statutes. This Court has

held that, on issues related to nuclear safety, Congress has

totally preempted state action. Pacific Gas, supra; Silkwood,

supra. The Illinois Supreme Court’s decision directly conflicts

with prior decisions of this Court under that Act. Moreover, the

Illinois Supreme Court’s decision raises important questions of

the scope of national policy regarding nuclear safety.

I. THE ILLINOIS SUPREME COURT’S

DECISION CONFLICTS WITH PRIOR

DECISIONS OF THIS COURT

The doctrine of federal preemption is based on the Su-

premacy clause of the Constitution. This Court has repeatedly

held that, under the Supremacy clause, Congress may com-

pletely occupy all or a part of a particular area and thereby

preempt all state action in that area. See Fidelity Federal

Savings & Loan Ass'n v. de le Coesta, U.S. , 2

S. Ct. 3014, 3022 (1982); Rice v. Sante Fe Elevator Corp., 331

U.S. 218 (1947). In the field of nuclear safety regulation, the

area governed by the Act at issue, this Court has specifically

held that the “federal government has occupied the entire field

of nuclear safety concerns, except the limited powers expressly

ceded to the states.” Pacific Gas & Electric v. State Energy

Resources Conserv. & Develop. Comm., __.. U.S. ___.. 103

S. Ct. 1713, 1776 (1983).

In the instant case, Congress has comprehensively regu-

lated nuclear safety and the handling of radioactive materials.

This federal control is further implemented by extensive Nucle-

ar Regulatory Commission administrative regulations. In order

to “help assure that employers do not violate requirements of

the Atomic Energy Act” (!978 U.S. Code Cong. and Adm.

News 7304), Congress included a detailed remedial provision

for employees allegedly discriminated against because of their

actions in compliance with this statute. Pacific Gas, therefore,

dictates that this comprehensive provision, as part of Congress’

control of nuclear safety issues, preempts the field and leaves no

room for state action. The state common law action sought by

Wheeler and authorized by the Illinois Supreme Court, there-

fore, is totally preempted.

The Illinois Supreme Court, however, ignoring the broad

preemptive sweep of this Court’s opinion in Pacific Gas, reasons

that Pacific Gas held that state legislation could co-exist with

the present Act if it did not conflict with that Act. The Illinois

Court then concludes that, since the state common law action

does not conflict with the federal act, it is not preempted by that

Act. This, however, was not the holding of Pacific Gas.’ In

1 Even if this were the holding of Pacific Gas, the purported state

action does conflict directly with the federal statute. For example.

Congress established specific time limits as short as thirty days for any

employee who is “discharged or otherwise discriminated against” to

file an administrative complaint with the Secretary of Labor. § 5851

( Footnote continued on following page. )

10

Pacific Gas & Electric, this Court was confronted with the issue

of the preemptive effect of the Atomic Energy Act, as amended.

After reviewing the Act, this Court concluded that Congress

intended to totally preempt state action in the fieid of nuclear

safety but had expressly left to the states only economic

questions of energy generation. /d., 103 S. Ct. at 1766.

State safety regulation is not preempted only when it

conflicts with federal law. Rather, the federal government

has occupied the entire field of nuclear safety concerns,

except the limited powers expressly ceded to the states.

When the federal government completely occupies a given

field or an identifiable portion of it, as it has done here, the

test of preemption in whether the “matter on which the

state asserts the right to act is in any way regulated by the

federal government.”

Id. at 1726 (quoting Rice v. Sante Fe Elevator Corp., 331 US.

218, 236 (1947) ).

A year after Pacific Gas. this Court was confronted with

the question of whether a state tort action could co-exist with

the Act. Silkwood v. Kerr-McGee Corp., USS. . 1048.

Ct. 615 (1984). In Silkwood, the plaintiffs estate brought a

( Footnote continued from previous page.)

(b)( 1). The Congressional concern for the expeditious resolution of

these matters would be seriously undermined by the application of a

two year state statute of limitations to an identical tort action.

Morever, Congress delegated investigation of these complaints and

enforcement of the Act to the Department of Labor, the adminis-

trative agency with expertise in these areas. §5851(b)(2). The

Illinois action, however, would be heard by a jury. Thus, the creation

of a common law action for retaliatory discharge here would undercut

the uniformity of enforcement Congress intended by the use of a

single administrative body and by the broad administrative authority

invested in the Secretary of Labor. Finally, Congress has established

explicit. remedies for complaints of retaliatory § discharge

(§ 5851(b)(2)(B) and § 5851(d)) which differ from those available

in a common law tort action asserting the same claims.

common law state action for damages allegedly caused by

exposure to radioactive materials. The Court concluded that a

state tort action for damages caused by exposure to radio-

activity could proceed despite congressional regulation of this

area. Reviewing the legislative history of the Price-Anderson

Act, this Court noted that Congress specifically allowed for the

possibility of such actions.2 The Court further observed that it

“is difficult to believe that Congress would, without comment,

remove all means of judicial recourse for those injured by

illegal conduct.” 104 S. Ct. at 673. Again, however, the Court

noted the express Congressional intent to allow for such actions.

In this case Congress has specifically acted by creating a

specific, detailed remedial mechanism for employees who are

allegedly retaliated against because of their actions in promot-

ing nuclear safety concerns. As part of the comprehensive

federal regulation of the use of nuclear energy, Section 210 not

only defines the protected class and prohibited conduct but

provides a detailed administrative and judicial enforcement

scheme for alleged violations of the statute. In light of the

exclusive federal regulation of all aspects of nuclear safety, as

established by Pacific Gas, this comprehensive federal ‘“‘em-

ployee protection” statute completely preempts the state com-

mon law tort remedy created by the Illinois Supreme Court.

The Illinois Court’s opinion, however, misreads_ this

Court’s holdings and, as a result, directly conflicts with those

2 The Price-Anderson Act ts a portion of the Atomic Energy Act

which establishes an indemnification procedure for operators of

nuclear facilities for claims arising as a result of damages caused by

major nuclear incidents. The legislative history of the Act clearly

establishes a Congressional intent to allow state tort actions for

personal injuries resulting from radioactive exposure. The instant

case, however, does not involve such a claim or such an incident.

Thus, the Price-Anderson Act and its legisiative history are not

relevant to this case.

12

decisions.? This Court has held that, under the Act in question,

Congress has chosen to completely occupy al! areas of nuclear

safety regulation. While Congress has explicitly retained some

room for state action in other areas of energy regulation, where

Congress has acted, the test for preemption is whether the state

action relates to a matter which is in any way regulated by the

federal government. Pacific Gas, supra, at 1726. Since

Congress has acted on the precise question confronted by the

Illinois court, the state action at issue in this case is preempted.

The Illinois Supreme Court’s decision does violence to the

principles established by this Court’s decisions. In essence, the

decision allows state action in the area of nuclear safety

concerns even when that action is explicitly regulated by the

comprehensive Act. In so doing, the Illinois court totally

convolutes this Court’s holdings by ignoring the preeminent

effect of federal regulation in this area. In short, this Court has

3 The Illinois Court’s decision is further at odds with the preemp-

tive sweep provided other federal employment statutes by this Court.

For example, the National Labor Relations Act creates a federal

agency to administer alleged violations of federa! labor law. As a

result, the NLRA preempts state action which is arguably covered by

that Act. See San Diego Bldg. Trades Council v. Garman, 359 U.S.

236 (1959). As this Court has noted in language directly applicable

to this case:

The rationale for preemption, then, rests in large measure

upon our determination that when it set down a federal labor

policy, Congress meant to do more than simply to alter the then-

prevailing substantive law. It sought as well to restructure

fundamentally the processes for effectuating that policy, deliber-

ately placing the responsibility for applying and developing this

comprehensive legal system in the hands of an expert adminis-

trative body ....

Amalgamated Ass'n of Street Employees v. Lockridge, 403 U.S. 274.

288 (1971). See also Allis-Chalmers v. Lueck, U.S.

, LOS S. Ct. 1904 (1985); Massachusetts Mutual Life Ins. Co. v.

Russell, ___. U.S. ____.,, 105 S. Ct. 3085 (1985).

13

established that in the critically important field of nuclear

safety, Congress has precluded state action except in specific

areas. By allowing state action in the face of specific federal

regulation, the Illinois Supreme Court has directly contravened

the decisions of this Court.

Il. RESOLUTION OF THIS CONFLICT IS A MATTER

OF GREAT NATIONAL IMPORTANCE

Not only is there a fundamental conflict on the question

presented here, but the prompt resolution of the conflict is a

matter of great national importance. Congress has determined

that federal interests require exclusive federal control of all

aspects of nuclear safety. The Illinois Supreme Court now

deviates from that explicit congressional mandate and has

established a precedent for further state departure from this

basic principle in other areas of nuclear safety reguiation.

Moreover, the Illinois Supreme Court’s decision has

profound and immediate effects on federal labor policy. The

federal provision at issue in this case is not unique to the Atomic

Energy Act. In fact, at least six other federai statutes contain

virtually identical provisions.4 The holding of the Illinois court,

if allowed to stand, would afford a state license to act in a wide

variety of areas in which the federal government has chosen to

act.

The importance of the issue herein to the administration of

national policy is plain. If Illinois is allowed to create a tort

4 See Toxic Substances Control Act, 15 U.S.C. § 2622 (1982)

(“Employee Protection’); Asbestos School Hazard Detection and

Control Act, 20 U.S.C. § 3608 (Cum. Supp. 1982) (“Employee

Protection”); Surface Mining Control and Reclamation Act of 1977,

30 U.S.C. § 1293 (Cum. Supp. 1985) (“Employee Protection’);

Federal Water Poliution Control Act. as amended, 33 U.S.C. § 367

( 1982) (“Employee Protection” ); Resource Conservation and Recov-

ery Act of 1976, as amended, 42 U.S.C. § 6971 (1982) (“Employee

Protection”): Clean Air Act, as amended, 42 U.S.C. § 7622 (1982)

(“Employee Protection” ).

14

action for conduct regulated by federal statute for which the

federal statute provides a remedy, other state courts may apply

analogous tort theories with respect to a broad spectrum of

other federal rights and remedies. Following the analysis of the

Illinois court, conflicting state interests could easily become

paramount, allowing the terms of federal statutes to be ignored

or overridden.

The danger of this result is amply illustrated by the case at

bar. Congress has determined that the regulation of nuclear

safety is an issue of paramount national concern and has thus

assumed exclusive control in this area. Part of that extensive

regulation was the creation of an employee protection statute

for retaliatory discharge which covers the precise conduct at

issue in this case. The Illinois court, however, has chosen to

ignore the procedures and remedies created by Congress and

has created a separate remedy. The Illinois Supreme Court’s

decision impermissibly intrudes into an area which Congress

has chosen to regulate and which this Court has decided is

federally preempted.

In sum, the Illinois Supreme Court’s decision attempts to

regulate conduct which is the subject of exclusive federal

regulation and undermines important policies embodied there-

in. The decision allows a state tort action to replace congres-

sionally established procedures and remedial mechanisms. As

such, the decision is repugnant to the decisions of this Court and

creates an issue of fundamental national importance.

15

CONCLUSION

For the reasons stated, this Court should grant the Petition

for Certiorari, summarily vacate the Illinois Supreme Court’s

decision and remand for appropriate action by the Illinois

courts. Alternatively, the Court should grant the Petition and

give the case plenary consideration.

Respectfully submitted,

CATERPILLAR TRACTOR CoO.

By

One of Its Attorneys

GERALD D. SKONING*

J. STEPHEN Poor

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON

55 East Monroe Street

Suite 4200

Chicago, Illinois 60603

(312) 346-8000

MICHAEL I. CAMPBELL

JON D. ROBINSON

HULL, CAMPBELL & ROBINSON

500 Millikin Court

Decatur, illinois 62525

(217) 429-4296

Attorneys for Petitioner

* Counsel of record.

APPENDIX

A-|

APPENDIX A

William E. WHEELER, et al.

Appellants,

Vv .

CATERPILLAR TRACTOR

COMPANY, Appellee.

No. 60181.

Supreme Court of Illinois.

Oct. 18, 1985.

Rehearing Denied Dec. 2, 1985.

Former employee and his wife brought action against

former employer, alleging retaliatory discharge. The Circuit

Court, Macon County, Donald W. Morthland, J.. granted

employer’s motion to dismiss, and employee and his wife

appealed. The Appellate Court, 123 [llApp. 3d 539, 78 Ill.

Dec. 908, 462 N.E.2d 1262, affirmed and remanded. On

allowance of petition by employee and his wife for leave to

appeal, the Supreme Court, Goldenhersh, J.,. held that: (1)

Congress did not intend to preempt field of retaliatory dis-

charge of employee under Energy Reorganization Act provision

which permits employee to be reinstated in his employment and

recover compensatory damages; (2) whether allegedly retali-

atory discharge for refusal to work in handling of radioactive

cobalt 60 while operations were being conducted in violation of

reguiations promulgated by the Nuclear Regulatory Commis-

sion involved public policy, or matter of private concern, did

not depend upon whether complaint was made to the regu-

latory authorities; and (3) complaint stated cause of action for

a retaliatory discharge for refusing to work under conditions

which countervened clearly mandated public policy.

Reversed and remanded.

Moran, J., filed dissenting opinion, in which Ryan, J..

joined.

A-2

1. Pretrial Procedure

Where order to dismiss various counts of complaint was

entered upon allowance of motion to dismiss, all facts properly

pleaded had to be taken as true.

2. Appeal and Error

In determining sufficiency of counts of complaint dismissed

upon allowance of motion to dismiss, Supreme Court must

apply rule that no cause of action should be dismissed on

pleadings unless it clearly appears that no set of facts can be

proved which will entitle plaintiff to recover.

3. States

Control of radioactive materials was preempted by the

enactment of the Atomic Energy Act [42 U.S.C.A. § 2011 et

seq.]. Atomic Energy Act of 1954, § | et seq., as amended, 42

U.S.C.A. § 2011 et seq.

4. States

Congressional findings {42 U.S.C.A. § 2012] and declara-

tion of policy [42 U.S.C.A. § 2011] of the Atomic Energy Act

[42 U.S.C.A. § 2011 et seq.] enunciate a public policy which is

national in scope. Atomic Energy Act of 1954, §§ | et seq., 1, 2.

as amended, 42 U.S.C.A. §§ 2011 et seq., 2012.

5. States

Even in legislation in which Congress has not totally

displaced state regulation in a specific area, state law is

preempted to extent that it actually conflicts with federal law or

if it stands as obstacle to accomplishment of the full purposes

and objectives of Congress.

6. States

Congress did not intend to preempt actions for tort of

retaliatory discharge by enacting the Energy Reorganization

Act provision which permits employee to be reinstated in his

employment and recover compensatory damages [42 U.S.C.A.

§ 5851]. Energy Reorganization Act of 1974, §210, as

amended, 42 U.S.C.A. § 5851.

A-3

7. Master and Servant

Whether facts invoived in allegedly retaliatory discharge

for refusal of employee to work in handling of radioactive

cobalt 60 while operations were being conducted in violation of

regulations promuigated by the Nuclear Regulatory Commis-

sion involved public policy, or were matter of private concern,

did not depend upon whether complaint was made to the

regulatory authorities, as legislation and regulation declared

public policy and existence of that policy did not depend upon

whether employee had communicated a complaint.

8. Master and Servant

Complaint, which alleged that employee was discharged in

retaliation for his refusal to work in handling of radioactive

cobalt 60 while operations were being conducted in violation of

regulations promulgated by the Nuclear Regulatory Commis-

sion, stated cause of action for retaliatory discharge for refusing

to work under conditions which contravened clearly mandated

public policy of protecting lives and property of citizens from

hazards of radioactive material. Atomic Energy Act of 1954,

§ | et seq., as amended, 42 U.S.C.A. § 2011 et seq.; Energy

Reorganization Act of 1974, § 210, as amended, 42 U.S.C.A.

§ 5851.

Willoughby & Latshaw, K. Michael Latshaw of Counsel,

Decatur, for appellants.

Hull, Campbell & Robinson, Decatur, for appellee.

GOLDENHERSH, Justice:

Plaintiffs, William E. Wheeler and Judith A. Wheeler,

appealed from the order of the circuit court of Macon County

dismissing with prejudice counts III and VI of their six-count

complaint against defendant, Caterpillar Tractor Company,

and striking from counts I, II, [V and V the prayers for punitive

or exemplary damages. The appellate court affirmed (123

A-4

ll.App.3d 539, 78 Ill.Dec. 908, 462 N.E.2d 1262), and we

allowed plaintiffs’ petition for leave to appeal (94 Ill.2d R.

315).

The appellate court affirmed the striking of the prayers for

punitive damages, holding that the circuit court had entered no

such order with respect to counts [V and V, and that, by failing

to argue the point on appeal, plaintiffs had waived any error

with respect to counts I and II. This appeal involves only

counts III and VI.

In count III it was alleged that plaintiff, William E.

Wheeler, had been employed by defendant since December

1955; that in August 1979 he was employed in defendant’s X-

ray department as a radiographer; that approximately eight

months earlier he had been told by his supervisors that

defendant was installing a Cobalt 60 unit that utilized live

radioactive cobalt and that plaintiff would be expected to

operate; and that plaintiff repeatedly requested that he not be

required to operate the cobalt unit and that he be transferred

out of the X-ray department for the reason that the cobalt unit

was not properly operated and could cause serious and per-

manent injury. He alleged that cobalt 60 is a live source of

radioactivity; that its safe handling requires more training than

plaintiff was given; and that a Nuclear Regulatory Commission

investigation disclosed a number of inadequacies and violations

of regulations published in designated paragraphs of the Feder-

al Register. Plaintiff also alleged that defendant refused to

grant his request for transfer from the X-ray department and, in

retaliation for his refusal to work with the cobalt unit, dis-

charged him. He alleged, too, that the discharge was in

contravention of the public policy of the State of Illinois and

resulted from his employer’s violation of federally mandated

safety codes.

In count VI, plaintiff, Judith A. Wheeler, made substan-

tially the same allegations, and further alleged that she had

been deprived of plaintiffs services, society, companionship,

and his conjugal relationship, and sought damages therefor.

A-5

In affirming the judgment, the appellate court, citing

Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124,

52 Ill.Dec. 13, 421 N.E.2d 876, held that to state a cause of

action for the tort of retaliatory discharge requires that it be

alleged in the complaint that the employee was discharged in

retaliation for his activities, and that the discharge was in

contravention of a clearly mandated public policy. The appel-

late court concluded that plaintiff William Wheeler was not

attempting to remedy any possible rule violations, nor could

they have played any part in his discharge, and therefore the

clearly mandated public policy required under Palmateer was

not present.

[1, 2] Because the order was entered upon allowance of a

motion to dismiss, all facts properly pleaded must be taken as

true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ull.2d

179, 187, 20 Ill.Dec. 581, 380 N.E.2d 790.) In determining the

sufficiency of the dismissed counts, we must apply the rule that

no cause of action should be dismissed on the pleadings unless

it clearly appears that no set of facts can be proved which will

entitle plaintiff to recover. Fitzgerald v. Chicago Title & Trust

Co. (1978), 72 Ill.2d 179, 187, 20 Ill.Dec. 581, 380 N.E.2d 790;

Fechtner v. Lake County Savings & Loan Association (1977),

66 Ill.2d 128, 5 Ill.Dec. 252, 361 N.E.2d 575.

It is plaintiffs’ contention that the enactment of Federal

legislation and the promulgation of regulations, violations of

which are alleged in the complaint, enunciate a clearly man-

dated public policy to be uniformly enforced throughout the

United States. They argue that the complaint alleged that Mr.

Wheeler was discharged in retaliation for his refusal to work in

the face of these violations and that the complaint stated a

cause of action. It is defendant’s position that because the

complaint alleged no communication to the appropriate author-

ities of plaintiffs’ claims of violation of the regulations, the

controversy remained an internal matter between employer and

employee and no public policy question was involved.

{3, 4] The control of radioactive material was preempted

by the enactment of the Atomic Energy Act of 1954 (42 U.S.C.

A-6

sec. 2011 et seg. (1982); Pacific Gas & Electric Co. v. State

Energy Resources Conservation & Development Com. (1983),

461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752; Illinois v. Kerr-

McGee Chemical Corp. (7th Cir.1982), 677 F.2d 571), and the

congressional findings (42 U.S.C. sec. 2012 (1982)) and

declaration of policy (42 U.S.C. sec. 2011 (1982)) clearly

enunciate a public policy which is national in scope.

Although not briefed or argued by the parties, we have,

sua sponte, raised the question whether under the provisions of

section 210 of the Energy Reorganization Act (42 U.S.C. sec.

5851 (1982) ) the preemption is so extensive as to preclude the

bringing of this action. Section 5851, in pertinent part,

provides:

(a) Discrimination against employee

No employer, including a Commission licensee, an

applicant for a Commission license, or a contractor or a

subcontractor of a Commission licensee or applicant, may

discharge any employee or otherwise discriminate against

any employee with respect to his compensation, terms,

conditions, or privileges of employment because the em-

ployee (or any person acting pursuant to a request of the

employee )—

(1) commenced, caused to be commenced, or is

about to commence or cause to be commenced a

proceeding under this chapter or the Atomic Energy

Act of 1954, as amended [42 U.S.C. sec. 2011 ef seg. },

or a proceeding for the administration or enforcement

of any requirement imposed under this chapter or the

Atomic Energy Act of 1954, as amended;

(2) testified or is about to testify in any such

proceeding or;

(3) assisted or participated or ts about to assist or

participate in any manner in such a proceeding or in

any other manner in such a proceeding or in any other

action to carry out the purposes of this chapter or the

Atomic Energy Act of 1954, as amended [42 U.S.C.

sec. 2011 ef seq. }.

A-7

(b) Complaint, filing and notification

(1) Any employee who believes that he has been

discharged or otherwise discriminated against by any

person in violation of subsection (a) of this section

may, within thirty days after such violation occurs, file

(or have any person file on his behalf) a complaint

with the Secretary of Labor (hereinafter 'n_ this

subsection referred to as the ‘Secretary’) alleging such

discharge or discrimination. Upon receipt of such a

complaint, the Secretary shall notify the person named

in the complaint of the filing of the complaint and the

Commission.

(2A) **”*

(B) If, in response to a complaint filed under

paragraph (1), the Secretary determines that a viola-

tion of subsection (a) of this section has occurred, the

Secretary shall order the person who committed such

violation to (1) take affirmative action to abate the

violation, and (ii) reinstate the complainant to his

former position together with the compensation (in-

cluding back pay), terms, conditions, and privileges of

his employment, and the Secretary may order such

person to provide compensatory damages to the com-

plainant. If an order is issued under this paragraph,

the Secretary, at the request of the complainant shall

assess against the person against whom the order Is

issued a sum equal to the aggregate amount of all

costs and expenses (including attorneys’ and expert

witness fees) reasonably incurred, as determined by

the Secretary, by the complainant for, or in connection

with, the bringing of the complaint upon which the

order was issued.” 42 U.S.C. secs. 5851(a), (b)

(1982).

[5] Even in legislation in which Congress has not totally

displaced State regulation in a specific area, State law is

preempted to the extent that it actually conflicts with Federal

law or if it stands as an obstacle to the accomplishment of the

fuli purposes and objectives of Congress. (Pacific Gas &

Electric Co. v. State Energy Resources Conservation & Devel-

opment Comm. (1983), 461 U.S. 190, 103 S.Ct. 1713, 75

A-8

L.Ed.2d 752.) In Pacific Gas & Electric the Supreme Court held

that a primary purpose of the Atomic Energy Act is the

promotion of nuclear power and that a California statute

conditioning, as a matter of economic policy, construction of

additional nuclear power plants on findings of the State Energy

Commission that adequate means of disposal exist for nuclear

waste did not so frustrate the Atomic Energy Act’s purpose to

develop the commercial use of nuclear power as to be pre-

empted by the Act. In Si/kwood v. Kerr-McGee Corp. (1984),

464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443, the Supreme

Court rejected the contention that an award for punitive

damages in an action based on Oklahoma law conflicted with

Congress’ express intent to preclude dual regulation of radi-

ation hazards. The court concluded that it was not inconsistent

to vest the Nuclear Regulatory Commission with exclusive

regulatory authority over the safety aspects of nuclear devel-

opment and at the same time permit the plaintiffs to recover for

injuries caused by nuclear hazards, and that the award of

punitive damages was not preempted by Federal law.

[6] Under the provisions of section 5851 an employee may

be reinstated in his employment and recover compensatory

damages, but no provision is made for punitive damages. In

Midgett v. Sackett-Chicago, Inc. (1984), 105 IIl.2d 143, 85

Ill.Dec. 475, 473 N.E.2d 1280, it was held that a wrongfully

discharged employee whose employment was covered by a

collective-bargaining agreement providing for grievance proce-

dures was not required to exhaust those procedures prior to

bringing an action for the tort of retaliatory discharge. The

court reasoned that such an employee had a cause of action in

tort independent of any contract remedy which may have been

based on the collective-bargaining agreement. Citing Kelsay v.

Motorola, Inc. (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384

N.E.2d 353, the court held that he was not limited to the

remedies provided in the collective-bargaining agreement and

could seek to recover punitive damages. We find the situation

here analogous to Si/kwood and conclude that it was not the

congressional intent to preempt the field.

A-9

[7] Although somewhat inartfully stated, the complaint

alleged that plaintiff was discharged in retaliation for his refusal

to work in the handling of cobalt 60 while the operations were

being conducted in violation of regulations promulgated by the

Nuclear Regulatory Commission and published in the Federal

Regisiter. 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 com-

plaint 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 Nuclear Regulatory Commis-

sion or whether its investigation preceded or followed that

complaint.

[8] We note that the circuits are not in agreement on the

question whether the provisions of section 5851 protect an

employee from retaliation based on internal safety complaints

or whether participation in a proceeding is required. In

Consolidated Edison Co. of New York, Inc. v. Donovan (2d

Cir.1982 ), 673 F.2d 61, the court denied the petition for review

of an order directing the reinstatement of an employee who had

been discharged because he had made numerous complaints

about safety at the nuclear power plant where he was em-

ployed. There is nothing in the opinion to indicate that he had

participated in a proceeding for the enforcement of the Act. In

Mackowiak v. University Nuclear Systems, Inc. (9th Cir.1984),

735 F.2d 1159, the court sustained the Secretary of Labor’s

conclusion that section 585! protects employees from retaliation

based on internal-safety and quality-control complaints. In

Brown & Root, Inc. v. Donovan ( 5th Cir.1984), 747 F.2d 1029,

the court held that the statute does not protect the filing of

purely internal quality-control reports, but is designed to protect

“whistle blowers” who provide information to governmental

entities. The Supreme Court has not addressed the question

whether section 5851 applies to purely internal complaints.

Plaintiffs have alleged that William Wheeler was dis-

charged in violation of a clearly mandated public policy. In

A-10

Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124,

52 Ill.Dec. 13, 421 N.E.2d 876, it was held that a cause of

action for retaliatory discharge existed because the plaintiff was

discharged for informing a local law enforcement agency that a

co-worker may have committed a criminal violation. In

Palmateer the court said, “There is no public policy more

important or more fundamental than the one favoring the

effective protection of the lives and property of citizens.” (85

Ill.2d 124, 132, 52 Ill.Dec. 13, 421 N.E.2d 876.) The protection

of the lives and property of citizens from the hazards of

radioactive material is as important and fundamental as pro-

tecting them from crimes of violence, and by the enactment of

the legislation cited, Congress has effectively declared a clearly

mandated public policy to that effect. We hold, therefore, that

counts III and VI stated a cause of action for retaliatory

discharge for refusing to work under conditions which con-

travened the clearly mandated public policy, and the circuit

court erred in dismissing them.

The parties have limited their arguments to the sole

question whether counts III and VI stated a cause of action for

retaliatory discharge. They have not briefed or argued, and we

do not decide, assuming that plaintiffs prevail in this cause,

what elements of damage are recoverable, or whether any of

the damages sought in count VI may be recovered as the result

of the alleged wrongful discharge of William Wheeler. We

decide only the narrow issue presented, and in holding that the

counts erroneously dismissed stated a cause of action for

retaliatory discharge, we do not imply any opinion concerning

the damages.

For the reasons stated, the judgments of the appellate and

circuit courts are reversed and the cause is remanded to the

circuit court of Macon County for further proceedings consistent

with this opinion.

Judgments reversed; cause remanded.

MILLER, J., tock no part in the consideration or decision

of this case.

A-|1

MORAN, JUSTICE, dissenting:

The plaintiff in this case brought a common law action for

retaliatory discharge instead of pursuing the remedies provided

for in section 210 of the Energy Reorganization Act of 1974 ( 42

U.S.C. sec. 5851 (1982)). I disagree with the conclusion that

plaintiffs cause of action is not preempted by Federal law.

Moreover, | find no justification for extending the tort of

retaliatory discharge to cases where, as here, existing remedies

adequately protect the employee’s interest in earning a liveli-

hood and the public’s interest in safety. Therefore, in addition

to finding that plaintiff's cause of action is preempted by section

210, | would hold as a matter of law that plaintiff's remedy lies

solely under section 210.

The preemption doctrine has its basis in the supremacy

clause of the Federal Constitution (U.S. Const., art. VI, cl. 2).

The doctrine provides that when Congress has legislated on a

given subject, concurrent State law may be preempted by the

Federal law. (See generally Rice v. Santa Fe Elevator Corp.

(1947), 331 U.S. 218, 229-31, 67S. Ct. 1146, 1151-53, 91 L.Ed.

1447, 1459: Hines v. Davidowitz (1941), 312 U.S. 52, 68, 61 S.

Ct. 399, 404-05, 85 L.Ed. 581, 587.) In order to determine if a

State law has been preempted, the courts must examine the

congressional intent behind an enactment. Congress’ intent to

preempt concurrent State law in a given area may be express or

implied. ( Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238,

238, 104 S.Ct. 615, 621, 78 L.Ed.2d 443, 452: Pacific Gas &

Electric Co. v. State Energy Resources Conservation & Devel-

opment Com. (1983), 461 U.S. 190, 203-04, 103 S.Ct. 1713,

1722, 75 L.Ed.2d 752, 765.) The Supreme Court in Fidelity

Federal Savings & Loan Association v. De la Cuesta (1982),

458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664, explained:

“Pre-emption may be either express or implied, and ‘is

compelled whether Congress’ command is explicitly stated

in the statute’s language or implicitly contained in its

structure and purpose.’ * * * Absent explicit pre-emptive

language, Congress’ intent to supersede state law altogeth-

er may be inferred because ‘[t]he scheme of federal

regulation may be so pervasive as to make reasonable the

A-l2

inference that Congress left no room for the States to

supplement it,’ because ‘the Act of Congress may touch a

field in which the federal interest is so dominant that the

federal system will be assumed to preclude enforcement of

state laws on the same subject,’ or because ‘the object

sought to be obtained by federal law and the character of

obligations imposed by it may reveal the same purpose.’

** *

Even where Congress has not completely displaced

state regulation in a specific area, state law is nullified to

the extent that it actually conflicts with federal law. Such a

conflict arises when ‘compliance with both federal and

state regulations is a physical impossibility,’ * * * or when

state law ‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress,’

***” (458 U.S. 141, 152-53, 102 S.Ct. 3014, 3022, 73

L.Ed.2d 664, 675.)

See also Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238,

104 S.Ct. 615, 78 L.Ed.2d 443.

The majority opinion acknowledges that section 210 of the

Energy Reorganization Act of 1974 (42 U.S.C. sec. 5851

(1982)), sometimes referred to as the “whistle blower” protec-

tion statute, affords protection to employees who believe that

they have been discharged or discriminated against because

they have testified, given evidence, or reported violations of

Federal nuclear safety standards. The type of employee

conduct protected by the statute is broadly described. Some

courts have held that the protections of section 210 apply to

retaliatory employment action resulting from purely internal

company disputes over radiation safety. (See Mackowiak vy.

University Nuclear Systems, Inc. ( 9th Cir.1984), 735 F.2d 1159:

Consolidated Edison Co. v. Donovan (2nd Cir.1982), 673 F.2d

61. Contra, Brown & Root, Inc. v. Donovan ( Sth Cir.1984), 747

F.2d 1029.) No formal proceedings need to be initiated against

the employer as a result of an employee’s assistance or partici-

pation in order for the employee to be protected by section 210.

See 10 C.F.R. sec. 30.7(a)(2) (1985).

——————

A-13

Section 210 is enforced by the United States Secretary of

Labor. Employees who believe that they have been discharged

or discriminated against in violation of section 5851(a) may tile

a complaint with the Secretary within 30 days after such

violation occurs. (42 U.S.C. sec. 5851(b)(1).) The Secretary

then investigates the complaint to determine if a violation

occurred. If the Secretary finds a violation, he may award

appropriate relief, including reinstatement of the employee to

his former position, together with compensation (including

back pay), terms and privileges of his employment; com-

pensatory damages; and reasonable legal costs, including at-

torney fees and expert witness fees. (42 U.S.C. sec.

5851(b)(2)(B). See generally DeFord v. Secretary of Labor

(6th Cir.1983), 700 F.2d 281; Ellis Fischel State Cancer

Hospital v. Marshall ( 8th Cir.1980), 629 F.2d 563, cert. denied

(1981), 450 U.S. 1040, 101 S.Ct. 1757, 68 L.Ed.2d 237.) The

Secretary’s orders are reviewable by the United States court of

appeals. (42 U.S.C. sec. 5851(c)(1).) In addition, enforce-

ment of the Secretary’s order may be initiated by the employee

by filing suit in Federal district court. 42 U.S.C. sec. 5851(e).

There ts no doubt that the reguiation of the safety aspects

of nuclear energy has been predominately a matter of Federal

concern. ( Pacific Gas & Electric Co. v. State Energy Resources

Conservation & Development Com. (1983), 461 U.S. 190, 211-

12, 103 S.Ct. 1713, 1726, 75 L.Ed.2d 752, 770.) The purpose of

section 210 is to encourage “employees and union Officials [to]

help assure that employers do not violate requirements of the

Atomic Energy Act.” (42 U.S.C. sec. 5851, 1978 U.S. Code

Cong. and Adm. News 7304.) Thus, section 210 touches on an

area traditionally governed by Federal law.

In addition, section 210 represents just a part of the

comprehensive and pervasive Federal regulatory scheme on

nuclear energy. The statute here defines the class of individuals

and entities subject to its prohibitions, defines the prohibited

conduct, enumerates several and specific remedies available to

employees, and provides for a detailed administrative and

judicial process whereby aggrieved employees can seek redress

A-14

for violations of the statute. A more c»mprehensive statute

could hardly be imagined.

The fact that the regulation of the safety aspects of nuclear

development has traditionally and almost exclusively been a

matter of Federal not State concern, the pervasiveness of the

Federal regulation of nuclear safety, and the comprehensive

nature of the Federal “‘whistle blower” protection statute makes

‘reasonable the inference that Congress left no room for the

States to supplement it.’ ( Fidelity Federal Savings & Loan

Association v. De la Cuesta (1982), 458 U.S. 141, 153, 102

S.Ct. 3014, 3022, 73 L.Ed.2d 664, 675.) I would hold that

plaintiffs cause of action is preempted by section 210.

The majority opinion, in holding that section 210 does not

preempt plaintiff's common law cause of action for retaliatory

discharge, relies primarily on Sil/kwood v. Kerr-McGee Corp.

(1984), 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443. In that

case, the plaintiff brought a common law tort action for injuries

received by his decedent as the result of being contaminated by

plutonium at defendant's plant. The Supreme Court held that

the award of punitive damages based on Oklahoma law was

not preempted by the Atomic Energy Act of 1954 (42 U.S.C.

secs. 2011 through 2284 (1976 ed. and Supp. V)). Today’s

opinion, in addressing the preemption issue, simply states: “We

find the situation here analogous to Si/kwood and conclude that

it was not the congressional intent to preempt the field.” (108

Il.2d at 509, Ill.Dec. . 485 N.E.2d 376.) The reliance

on the Silkwood case is misplaced. The Supreme Court in

Silkwood found express language in the Price-Anderson Act ( 42

U.S.C. sec. 2210 (1982) ), an amendment to the Atomic Energy

Act, which clearly indicated that State tort remedies for persons

injured by nuclear accidents were, with certain exceptions, not

preempted. (464 U.S. 238, —__.. 104 S.Ct. 615, 623, 78

L.Ed.2d 443, 454-55. See generally Comment, Federal Preemp-

tion of the State Regulation of Nuclear Power: State Law

Strikes Back (1984), 60 Chi.-Kent L.Rev. 989, 1004-05. )

Unlike the clear expression of congressional intent found in the

language and history of the Price-Anderson Act, Congress has

SSS —TO.T

A-15

not expressly allowed for State tort remedies in section 210 of

the Energy Reorganization Act of 1974. Moreover, the court in

Silkwood found the absence of a Federal remedy to be signifi-

cant. The court observed that it “is difficult to believe that

Congress would * * * remove ail means of judicial recourse for

those injured by illegal conduct.” (464 U.S. 238, 104S.Ct. 615,

623, 78 L.Ed.2d 443, 454.) Here, by contrast, Congress has

provided plaintiff with a Federal remedy.

Furthermore, the impetus for this court’s recognition of the

tort of retaliatory discauarge was the lack of any remedy

available to employees in situations where they were discharged

in “contravention of a clearly mandated public policy.” ( Pal-

mateer v. International Harvester Co. (1981), 85 Ill.2d 124,

134, 52 Ill.Dec. 13, 421 N.E.2d 876). In Kelsay v. Motorola,

Inc. (1978), 74 Uli.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, this

court recognized a cause of action for retaliatory discharge

where a worker had been discharged for filing a workers’

compensation claim. In so doing, the court reasoned that such

an action was necessary in order to insure that at-will employ-

ees would be able to freely exercise their rights under the

Workers’ Compensation Act (Tli.Rev.Stat.1981, ch. 48, par.

138.1 et seg.) In Palmateer, a majority of this court recognized

a cause of action for retaliatory discharge where an employee

alleged he was fired for supplying information to local law-

enforcement officials concerning the possible criminal in-

volvement of a fellow employee. Again, the rationale of the

majority was that no remedy existed to protect an employee

who was discharged for engaging tn conduct which promoted

the public policy favoring “citizen crime-fighters.” ( Pa/mateer

v. International Harvester Co. (1981), 85 Ill.2d 124, 132, 52

Ill.Dec. 13, 421 N.E.2d 876.) The court stated:

“With the rise of large corporations conducting specialized

operations and employing relatively immobile workers

who often have no other place to market their skills,

recognition that the employer and employee do not stand

on equal footing is realistic. [Citation.] In addition,

unchecked employer power, like unchecked employee

power, has been seen to present a distinct threat to the

A-16

public policy carefully considered and adopted by society

as a whole. As a result, it is now recognized that a proper

balance must be maintained among the employer’s interest

in Operating a business efficiently and profitably, the

employee’s interest in earning a livelihood, and society’s

interest in seeing its public policies carried out.” (85 IIl.2d

124, 129, 52 Iil.Dec. 13, 421 N.E.2d 876.)

Even in Midgeit v. Sackett-Chicago, Inc. (1984), 105 Ill.2d 143,

85 Ill.Dec. 475, 473 N.E.2d 1280, a case in which I wrote a

dissent, a majority of this court held that a cause of action for

retaliatory discharge existed because they believed such an

action was “necessary” in order to provide employees covered

by a collective bargaining agreement with a “complete rem-

edy.”” 105 Ill.2d 143, 149, 85 Ill.Dec. 475, 473 N.E.2d 1280.

When the tort of retaliatory discharge is placed in its

proper historical perspective, it is difficult to justify today’s

decision. Based on the record before the court, there is no

indication that section 210 is inapplicable to the present case.

The record indicates that defendant is licensed by the Nuclear

Regulatory Commission and the employment dispute involves

allegations of Federal radiation safety standards. Moreover,

there is no indication that the remedy afforded by section 210 is

inadequate to protect both the public’s interest in safety and the

employee’s interest in earning 2 livelihood. Certainly Congress

considered all the competing policies involved when it enacted

section 210. (See 42 U.S.C. sec. 5851, 1978 U.S. Code Cong.

and Adm. News 7303-04.) Thus, irrespective .of whether

today’s action is preempted by Federal law, I do not think that

this court should intrude into an area already regulated by a

comprehensive Federal statute.

Courts tn other jurisdictions have refused to recognize a

cause of action for retaliatory discharge in circumstances where

employees have adequate statutory or administrative remedies

available to them. (See, e.g., Corbin v. Sinclair Marketing, Inc.

(Colo.App. 1984), 684 P.2d 265; Ohisen v. DST Industries, Inc.

(1981), ILl Mich. App. 580, 314 N.W.2d 699; Davis v. Boise

Cascade Corp. ( Minn.1979), 288 N.W.2d 680; Walsh v. Con-

A-17

solidated Freightways, Inc. (1977), 278 Or. 347, 563 P.2d 1205;

Brudnicki v. General Electric Co. (N.D. Ill.1982), 535 F.Supp.

84.) I find these cases persuasive, and would hold as a matter of

State common law that plaintiff does not have a cause of action

for retaliatory discharge.

In addition, I disagree with the conclusion that plaintiffs’

complaint states a cause of action for retaliatory discharge. In

my opinion the complaint does not allege facts sufficiently

setting forth the elements of the cause of action. The majority

opinion states: “[T]he complaint alleged that plaintiff was

discharged in retaliation for his refusal to work in the handling

of cobalt 60 while the operations were being conducted in

violation of regulations promulgated by the Nuclear Regulatory

Commission and published in the Federal Register.” ( Emphasis

added.) (108 Ill.2d at 509, _____ Il.Dec. ___.,, 485 N.E.2d

376.) That statement is incorrect.

The complaint only alleged that plaintiff was discharged

for his “reasonable refusal to work with the Cobalt 60 Unit,”

and that the unit was “not operated properly and could cause

serious and permanent injury.” The complaint also alleged that

an investigation by the Nuclear Regulatory Commission dis-

closed certain specified inadequacies in defendant’s radiation-

safety program. However, it did not, as the majority opinion

suggests, allege that any violations existed at the time plaintiff

was discharged, or that plaintiff was required to work with the

unit while defendant’s program was in violation of Federal

safety standards. As the appellate court in this case correctly

observed, the allegations of unsafe conditions “must be viewed

as of the time of plaintiffs discharge, which was on August 20,

1979. The record reveals that the investigations by the NRC

occurred on October 12, 1979, and March 11, 1981. There is no

indication in the record that any investigation was con-

templated nor pending on the date of plaintiffs discharge.” 123

Ill. App.3d 539, 544-45, 78 Ill.Dec. 908. 462 N.E.2d 1262.

A-18

Although pleadings are to be liberally construed and

formal or technical allegations are not necessary, a complaint

must, nevertheless, contain facts necessary to state a cause of

action. ( People ex rel. Scott v. College Hills Corp. (1982), 91

Ill.2d 138, 145, 61 Ill.Dec. 766, 435 N.E.2d 463; Fanning v.

LeMay (1967), 38 Ill.2d 209, 211, 230 N.E.2d 182.) A

complaint fails to state a cause of action when it omits facts, the

existence of which are necessary for plaintiff to recover. ( Ritch-

ey v. Maksin (1978), 71 Ill.2d 470, 474-75, 17 Ill.Dec. 662, 376

N.E.2d 991.) Assuming, arguendo, that discharge of an em-

ployee for refusal to work in handling cobalt 40 while the

operations violated Federal safety standards states a claim for

retaliatory discharge, plaintiffs’ complaint did not allege

sufficient facts showing that to be the case.

For the reasons stated, I must respectfully dissent.

RYAN, J., joins in this dissent.

B-|

APPENDIX B

123 Hl.App.3d 539

78 Ill.Dec. 908

William E. WHEELER and Judith A.

Wheeler, Piaintiffs-Appellants,

v.

CATERPILLAR TRACTOR COMPANY, a California Corpo-

ration authorized to do business in Iliinois, Defendant-

Appellee.

No. 4-83-0606.

Appellate Court of Illinois,

Fourth District.

April 17, 1984.

Former employee and his wife brought action against

former employer, alleging retaliatory discharge and intentional

infliction of severe emotional distress. The Circuit Court,

Macon County, Donald W. Morthland, J., granted employer’s

motion to dismiss, and plaintiffs appealed. The Appellate

Court, Webber, J., held that complaint filed by former at-will

employee failed to state cause of action against former employ-

er for retaliatory discharge, because, at the time of employee’s

discharge, there was no hard evidence of unsafe conditions at

the place of employment but only employee’s unilateral and

subjective decision that such conditions did exist, and thus

employee, who was discharged for refusing to work in condi-

tions which he alleged were unsafe, could point to no artic-

ulation of a clear or well-defined public policy that was

contravened as the result of his discharge.

Affirmed and remanded.

1. Pretrial Procedure

To prove that trial court abused its discretion in permitting

B-2

defendant to withdraw its answer and file a motion to dismiss in

its place, plaintiffs were required to show that they were

somehow prejudiced by the late filing of defendant’s motion.

S.H.A. ch. 110, 99] 2-615, 2-615(e).

2. Pretrial Procedure

Trial court did not abuse its discretion in permitting

defendant to withdraw its answer and file a motion to dismiss in

its place, despite fact that nearly two years passed between the

filing of defendant’s answer and its motion to substitute a

motion to dismiss, in absence of showing of any prejudice as

result of defendant’s tardy motion. S.H.A. ch. 110 9 2-615,

2-615(e).

3. Appeal and Error

Any contention that trial court erred in dismissing prayers

for punitive damages in two counts of plaintiffs’ complaint was

waived by plaintiffs’ failure to argue that point on appeal.

S.H.A. ch. LIOA, 7 341(e)(7).

4. Pretrial Procedure

To withstand a motion to dismiss, complaint must allege

facts sufficiently setting forth the essential elements of the cause

of action, and in ruling upon motion to dismiss, circuit court

may consider the pleadings, affidavits in support of the motion,

answers to interrogatories, and deposition evidence; if facts

alleged demonstrate any possibility of recovery, the order of

dismissal will be reversed.

5. Master and Servant

To state a cause of action for retaliatory discharge, all that

is required is that employer discharge employee in retaliation

for employee’s activities, and that the discharge be in con-

travention of clearly mandated public policy.

B-3

6. Master and Servant

Complaint filed by former employee failed to state cause of

action against former employer for retaliatory discharge, be-

cause, at the time of employee’s discharge, there was no hard

evidence of unsafe conditions at the place of employment but

only employee’s unilateral and subjective decision that such

conditions did exist, and thus employee, who was discharged

for refusing to work in conditions which he alleged were unsafe,

could point to no articulation of a clear or well-defined public

policy that was contravened as the result of his discharge.

Bennett, Willoughby & Latshaw, P.C., Decatur, for

plaintiffs-appellants; K. Michael Latshaw, Decatur, of counsel.

Hull, Campbell & Robinson, Decatur, for defendant-

appellee; Michael I. Campbeil, Jon D. Robinson, Decatur, of

counsel.

WEBBER, Justice:

The plaintiffs (husband and wife), filed their six-count

complaint against the defendant ( husband’s former employer )

alleging retaliatory discharge and the intentional infliction of

severe emotional distress along with accompanying counts for

loss of consortium. The defendant filed an answer to the

complaint. The circuit court then allowed the defendant to

withdraw its answer and to file a motion to dismiss in its place.

The court subsequently ruled in favor of the defendant on its

motion to dismiss. On appeal, plaintiffs contend that the circuit

court erred in allowing the defendant to withdraw its answer

and to substitute a motion to dismiss. The plaintiffs also claim

that, in any event, the court’s order granting the motion to

dismiss was error because their complaint did state a cause of

action for retaliatory discharge as a matter of law. We affirm.

The facts, in brief, as gleaned from the complaint suggest

that the plaintiff-husband was discharged by the defendant

company on August 29, 1979, after having been employed by it

since 1955. At the time of his discharge, the plainuff was an

B-4

“at-will” employee engaged in quality control testing for the

defendant. He worked regularly with electrically generated

radiation in the X-ray department. In 1979 this department

switched to a live source of radiation called a Cobalt 60 Unit.

At this time the plaintiff repeatedly requested that he be

transferred out of this department because he felt that the

cobalt 60 unit was not being operated properly and because he

feared for his safety. The defendant, however, did not allow

the plaintiff to transfer. Consequently, the plaintiff refused to

work with the Cobalt 60 Unit and the defendant discharged

him.

The plaintiffs filed their complaint on May 12, 1981.

Counts I and II alleged that the defendant’s wilful and wanton

conduct caused the plaintiff-husband severe emotional distress.

Compensatory and punitive damages were requested in these

counts. Count III alleged that tiie discharge violated public

policy and contained a request for compensatory and punitive

damages for the plaintiff-husband. Counts IV and V requested

compensatory damages only for the plaintiff-wife as a result of

her loss of consortium caused by defendant’s infliction of severe

emotional distress upon her husband. Count VI alleged

violation of public policy and requested compensatory damages

for the wife for her loss of consortium caused by the defendant’s

alleged retaliatory discharge of her husband.

The defendant filed an answer to the complaint on June

11, 1981, and discovery was initiated. The case was originally

set for trial on June 20, 1983; however, the plaintiffs filed a

motion on May 5, 1983, seeking an indefinite continuance of

the cause. On May 13, 1983, the defendant filed a motion to

withdraw its answer and to file, in lieu thereof, a motion to

dismiss. On June 10, 1983, the court granted the motion to

continue and allowed the defendant to replace its answer with a

motion to dismiss. The motion asked that counts III and VI be

dismissed for failure to state a cognizable cause of action and

that counts I and II be dismissed because they contained

insufficient allegations to support prayers for punitive damages.

B-5

In its order of August 24, 1983, the court dismissed counts III

and VI for failing to state a cause of action. The court also

dismissed the prayers for punitive damages in counts I, II, IV,

and V, although counts IV and V contained no such prayers.

The court then found that there was no reason to delay appeal

pursuant to Supreme Court Rule 304(a) (87 Ill.2d R. 304(a) ).

On appeal the plaintiffs first argue that the circuit court

erred in permitting the defendant to withdraw its answer and to

file a motion to dismiss in its place. The defendant’s original

answer was filed on June I1, 1981. Nearly two years later on

May 13, 1983, the defendant filed its motion to withdraw its

answer and to substitute a motion to dismiss. The plaintiffs

contend that this time span and the amount of discovery

conducted in the meantime make the court’s decision an abuse

of discretion.

{1] The parties here agree that the defendant’s motion

should be governed by section 2-615 of the Code of Civil

Procedure (Ill.Rev.Stat.1981, ch. 110, par. 2-615), formerly

section 45 of the Civil Practice Act. That section places no

specific time limit for the filing of a motion with respect to

pleadings. Subsection (e) does state that any party “may

seasonably move” for a judgment on the pleadings. Illinois

courts have construed this section to give circuit courts the

discretion to allow the filing of late pleadings. In Illinois

Housing Development Authority v. Sjostrom & Sons, Inc.

(1982), 105 IlLApp.3d 247, 253-54, 61 Ill.Dec. 22, 27, 433

N.E.2d 1350, 1355, the court stated:

“There is very little case law concerning the time

period in which motions to dismiss can be filed. In

Greenlee Brothers & Co. v. Rockford Chair & Furniture Co.

(1969), 107 IllLApp.2d 326, 332-33 [246 N.E.2d 64],

however, this court did state that the trial court has

discretion to permit the filings of tardy pleadings, and

unless plaintiff can show that it was prejudiced by the late

filing there is no abuse of discretion. See also Silberstein v.

Joos (1978), 59 Ill.App.3d 293 [16 IIl.Dec 707, 375

B-6

N.E.2d 580]; McGrath Heating & Air Conditioning Co. v.

Gustafson (1976), 38 lil. App.3d 465 [348 N.E.2d 223].

Because this court can view the joint motion to dismiss

as a section 45 motion, because section 45 does not refer to

a time period in which such motions must be brought, and

because plaintiff has failed to establish that it has been

prejudiced by the late filing of the joint motion, .the trial

court did not abuse its discretion in ruling on the joint

motion to dismiss, notwithstanding the fact that several of

the moving defendants had previously filed answers to the

complaint.”

Likewise, the Illinois Supreme Court has stated that the “‘objec-

tion that the complaint does not state a cause of action * * may

be raised at any time, either before or after judgment.”

( Krachock v. Department of Revenue (1949), 403 Ill. 148, 153,

85 N.E.2d 682, 685, appeal dismissed, 338 U.S. 804, 70 S.Ct. 72,

94 L.Ed. 487.) Therefore, to prove that the court here abused

its discretion the plaintiffs must show that they were somehow

prejudiced by the late filing of the defendant’s motion.

[2] The plaintiffs do not allege any specific prejudice that

they have suffered as a result of the defendant’s tardy motion.

They merely allege that the ends of justice cannot be served by

allowing the motion after nearly two years of preparing for

trial. This general allegation must be considered in the light of

the plaintiffs own request for a continuance of the trial, filed

only eight days before the defendant’s motion to withdraw its

answer. Since the plaintiffs sought, and were granted, an

indefinite delay in the proceedings, it is not likely that they were

prejudiced by the tardy filing of the defendant’s motion to

withdraw its answer. Since the plaintiffs have failed to show

any prejudice we cannot say that the court’s decision to allow

the tardy motion was an abuse of discretion.

[3] The plaintiffs next contend that even if the motion to

dismiss were properly filed, the circuit court erred in granting it.

They claim that counts III and VI of their complaint did state a

cause of action based upon the tort of retaliatory discharge.

B-7

However, any contention that the court erred in dismissing the

prayers for punitive damages in counts I and II has been

waived by the plaintiffs’ failure to argue this point on appeal.

See Supreme Court Rule 341(e)(7) (87 Ill.2d R. 341(e)(7)).

[4] To withstand a motion to dismiss, a complaint must

allege facts sufficiently setting forth the essential elements of the

cause of action. In ruling upon a motion to dismiss the circuit

court may consider the pleadings, affidavits in support of the

motion, answers to interrogatories, and deposition evidence.

( Gaudynski v. Corbett (1980), 81 Ill.App.3d 910, 37 Ill.Dec.

125, 401 N.E.2d 1218.) If the facts alleged demonstrate any

possibility of recovery, the order of dismissal will be reversed.

[5] With the decision of Kelsay v. Motorola, Inc. (1978),

74 Ull.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, Illinois joined

the growing number of states recognizing the tort of retaliatory

discharge. This tort is an exception to the general rule that an

“at-will” employee may be discharged at any time for any

cause. To state a cause of action for retaliatory discharge “[a ]Il

that is required is that the employer discharge the employee in

retaliation for the employee’s activities, and that the discharge

be in contravention of a clearly mandated public policy.”

Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124,

134, 52 Ill.Dec. 13, 18, 421 N.E.2d 876, 881.

In the present case, the complaint states that the plaintiff-

husband was discharged because of his refusal to work with

allegedly unsafe equipment. The complain also alleges the

defendant’s operation of the Cobalt 60 Unit violated several

Nuclear Regulatory Commission rules. The complaint then

states that the discharge of the plaintiff-husband was in con-

travention of the public policy of Illinois in that a worker should

not be discharged for refusing to work with allegediy unsafe

equipment. It is clear from the complaint that the plaintiff was

discharged in retaliation for certain activities. Thus the issue to

be resolved is whether the plaintiffs have sufficiently alleged

that the discharge was in violation of a clear public policy.

B-8

There are no Illinois court decisions discussing public

policy under similar factual circumstances. In Kelsay, the

supreme court held that discharging an employee for filing a

workmen’s compensation claim violated the clear public policy

enunciated in the Workers’ Compensation Act (Ill.Rev.Stat.

1973, ch. 48, par. 138.1, et seg.). In Palmateer, the supreme

court held that discharging an employee for assisting the police

in the investigation and prosecution of suspected crimes violates

the clear public policy in favor of the enforcement of the

criminal code of Illinois.

In its Palmateer decision, the supreme court sought to

determine the contours of the tort of retaliatory discharge. In

doing so, the court stated that an employer retains the right to

fire workers at will in cases where no clear mandate of public

policy is involved. The court then discussed the definition of

public policy and stated:

“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’s constitution and

statutes and, when they are silent, in its judicial decisions.

(Smith v. Board of Education (1950), 405 Ill. 143, 147 [89

N.E.2d 893].) Although there is no precise line of demar-

cation dividing matters that are the subject of public

policies from matters purely personal, a survey of cases in

other States involving retaliatory discharges shows that a

matter must strike at the heart of a citizen’s social rights,

duties, and responsibilities before the tort will be allowed.”

( Palmateer, 85 Ill.2d 124, 130, 52 Ill.Dec. 13, 15-16, 421

N.E.2d 876, 878-79. )

The court went on to list a number of decisions from other

jurisdictions upholding the tort of retaliatory discharge for such

things as refusing to commit perjury; refusing to engage in price

fixing; refusing to violate a consumer credit code; refusing to

practice medicine without a license; refusing to evade jury duty:

engaging in statutorily protected union activities; and for filing

a workers’ compensation claim. On the other hand, the action

had not been allowed where a worker disputed a company’s

a ee

B-9

internal management system; took too much sick leave; tried to

examine the company’s books in a shareholder capacity; im-

pugned the company’s integrity; refused to be examined by a

psychological-stress evaluator; or used the employer’s Christ-

mas fund improperly.

In summary, the supreme court noted that the action had

been allowed where the public policy was clear. However, the

action was denied where it was clear that only private interests

were at stake. The court then observed that where the interest

at stake is less than clear, the courts of other jurisdictions have

given conflicting answers. In this list, the court included the

situation where an employee is discharged for internal disputes

regarding product safety. This situation appears closest to the

circumstances in the present case.

While the supreme court expressed no view as to the less-

than-clear areas, it did cite Pierce v. Ortho Pharmaceutical

Corp. (1979), 166 N.J.Super. 335, 399 A.2d 1023, and Geary v.

United States Steel Corp. ( 1974), 456 Pa. 171, 319 A.2d 174, as

cases dealing with the situation where an employee was dis-

charged for challenging the safety of the company’s products.

In Pierce the court held that this factual situation may state a

cause of action and it remanded the case for further factual

development. In Geary the court held that this type of internal

dispute did not involve clear public policy and affirmed the

lower court’s dismissal of the complaint.

[6] In determining which side of the line the allegations in

the present complaint should fall upon, it is important to note

that the facts here involve less indicia of public policy than

those in Pierce and Geary. Those cases dealt with an employee

voicing concerns to his superiors about possible defects in the

employer’s products. These products were being sold to the

public. On the other hand, we deal here with an employee who

was discharged because he maintained that the equipment for

his job was possibly unsafe.

ee

B-10

To sustain his position, plainuff alleged in his complaint

that an investigation by the United States Nuclear Regulatory

Commission ( NRC) had found inadequacies in the defendant’s

radiation safety program. These allegations must be viewed as

of the tme of plaintiffs discharge, which was on August 20,

1979. The record reveals that the investigations by the NRC

occurred on October 12, 1979, and March I1, 1981. There is no

indication in the record that any investigation was con-

templated nor pending on the date of plaintiffs discharge.

Moreover, we have examined those reports and they do

not reveal that any inadequacies were of a life-threatening

nature. Briefly summarized, the report of October 12, 1979,

found the following: (1) fatlure to post a certain notice; (2) a

practice of padlocking the door to the radiographic facility

during operations; (3) failure to keep survey records of radi-

ation levels in unrestricted areas; (4) failure to calibrate two

survey meters for more than three months; (5) maintaining

utilization logs with less than all the information required: (6)

maintaining a less than adequate daily record of dosimeter

readings; (7) failure on || days to record radiation surveys to

determine that the sealed source was in its shielded condition.

The report of March I1, 1981, states,

“No items of noncompliance or unsafe conditions were

found.”

It is thus apparent that on August 20, 1979, there was no

hard evidence of unsafe conditions, but rather only plaintiffs

unilateral and subjective decision that such conditions did exist.

His position is therefore untenable.

The plaintiffs also rely on Petrik v. Monarch Printing Corp.

(1982), 111 HlApp.3d 502, 67 [ll.Dec. 352, 444 N.E.2d 588, to

support their contentions. The employee in that case was fired

for attempting to force his employer to comply with the Illinois

criminal code. The court there found that the public policy in

favor of the enforcement of criminal laws which was cited in

Palmateer was also present in that case. While the plaintiffs can

B-11

point to no criminal violations here, they do allege violations of

Nuclear Regulatory Commission rules. However, it is clear

from the record that these violations were not discovered untl

an inspection more than one month after the plaintiffs dis-

missal. The plaintiff was not attempting to remedy any possible

rule violations, nor could they have played a part in his

discharge. The public policy found in Pa/mateer and Petrik is

not present in this case.

As the court in Pierce noted, courts

“must guard against a potential flood of unwarranted

disputes and lingation 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 employ-

ment 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 vioiations there-

of.” (Pierce, 166 N.J.Super. 335, 342, 399 A.2d 1023,

1026. )

The plaintiffs here can point to no articulation of a clear or well-

defined public policy that has been contravened. In the

absence of this, we cannot say that the trial court erred in

dismissing counts III and VI of their complaint.

Accordingly, the judgment of the circuit court of Macon

County dismissing counts III and VI and the prayers for

punitive damages in counts I and II is affirmed and the cause ts

remanded to that court for further proceedings.

Affirmed and remanded.

TRAPP and MILLER, JJ., concur.

C-|

APPENDIX C

IN THE CinCUIT COURT

of the Sixth Judicial Circuit

Macon County, Illinois

WILLIAM E. WHEELER AND 7

JUDITH A. WHEELER,

individually,

Plaintiffs,

VS. 4 No. 81-L-71

CATERPILLAR TRACTOR

COMPANY,

a California Corporation

authorized to do business in Illinois,

Defendant.

7

ORDER

THIS CAUSE coming on for hearing this Sth day of

August, 1983, the Plaintiff being present by counsel of choice,

and the Defendant being present by counsel of choice, the

Court having heard the arguments of counsel on the Defend-

ant’s Motion to Dismiss, and being otherwise advised in the

premises:

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED AS FOLLOWS:

1. That Counts Three and Six of the Plaintiffs Complaint

are hereby dismissed and stricken and the Defendant’s Motion

to Dismiss is granted as to those counts, with prejudice, in that

the Plaintiff cannot state a cause of action based upon the facts

alleged in Count Three of his Complaint within the purview of

Petrik v. Monarch Printing Corporation, \\\ Ill. App. 3d 502

(First Dist. 1982); Kelsay v. Motorola, 74 Ill. 2d 172 (1978);

and Palmateer v. International Harvester, 85 Ill. 2d 124 (1981).

C-2

2. That the prayer for punitive or exemplary damages

contained in the Plaintiffs Counts One, Two, Four and Five are

hereby dismissed and stricken pursuant to Knierim v. Izzo, 22

Ill. 2d 73 (1961).

3. That pursuant to Illinois Supreme Court Rule 304 (a),

this Court expressly finds that there is no just reason for

delaying appeal of this Order.

ENTERED: 8-24-83

JUDGE

APPROVED AS TO FORM:

CATERPILLAR TRACTOR CO.

Attorney for the Defendant

D-|

APPENDIX D

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

December 2, 1985

Hull, Campbell & Robinson

Attorneys at Law

P.O. Box 1765

Decatur, IL 62525

No. 60181— William E. Wheeler, et al., appellants, v. Cater-

pillar Tractor Company, etc., appellee. Appeal,

Appellate Court, Fourth District.

The Supreme Court today DENIJED the petition for

rehearing in the above entitled cause. Miller, J., took no part.

The mandate of this Court will issue to the appropriate

Appellate Court and/or Circuit Court or other agency on

December 12, 1985.

E-!

APPENDIX E

No. 60181

IN THE

SUPREME COURT OF ILLINOIS

‘\

William E. Wheeler, et al..,

Appellants Appeal

Appellate Court

Fourth District

Caterpillar Tractor Company, etc. AC4-83-0606

Appellee

v.

Jd

ORDER

This matter has come for consideration upon the motion of

appellee to stay the mandate of this Court pending appeal or

application for certiorari in the United States Supreme Court.

IT IS ORDERED that the mandate of this Court in the

above cause is stayed pending the filing of a notice of appeal or

an application for certiorari or the expiration of the period

within which said application or notice may be filed. If

certiorari is applied for or notice of appeal filed, the mandate of

this Court shat, upon proof of such filing being made by

affidavit filed with the clerk of this Court, be further stayed

pending resolution by the United States Supreme Court of such

application or appeal. If no such affidavit ts filed, the mandate

shall, without further order, issue upon the expiration of the

time within which appeal or certiorari may be sought.

HowarD C. RYAN

Justice, Supreme Court of Illinois