Krum v. Chicago National League Ball Club, Inc ( 2006 )

THIRD DIVISION
May 3, 2006
No. 1-05-2342
SANDY A. KRUM, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. )
) No. 04 L 014266
CHICAGO NATIONAL LEAGUE BALL CLUB, INC., )
d/b/a THE CHICAGO CUBS, )
) Honorable
Defendant-Appellee. )) Stuart A. Nudelman,
) Judge Presiding.
JUSTICE KARNEZIS delivered the opinion of the court:
Plaintiff Sandy Krum (Krum) appeals from an order of the circuit court granting
defendant Chicago National League Ball Club, Inc.=s (the Cubs) motion to dismiss
pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS
5/2-615 and 5/2-619 (West 2004)). On appeal, Krum contends that the circuit court
erred in dismissing his retaliatory discharge claim and in denying his motion for leave to
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file an amended complaint. We affirm.
BACKGROUND
Krum filed the instant lawsuit as a result of the Cubs= decision not to renew his
one-year employment contract. Krum alleged the following relevant facts in his
complaint. Krum was the assistant athletic trainer for the Cubs from 2001 until 2004.
Krum was licensed as required by the Illinois Athletic Trainers Practice Act (225 ILCS
5/4 (West 2004)). The Cubs= head athletic trainer, however, did not have a license.
After discovering this fact, Krum met with the Cubs= general manager on August 16,
2004. During their three and-a-half hour meeting, Krum informed the general manager
of numerous improper events that had occurred during the course of the athletic
trainers' duties, including the head athletic trainer=s failure to have a license pursuant to
the Athletic Trainers Practice Act.
In early October 2004, during one of the last games of the season, a member of
the Cubs= board of directors approached Krum in the dugout and told Krum, Awe are
sorry for putting you through this and we will handle it next week.@ On or about October
13, 2004, the Cubs Aterminated@ Krum. The Cubs continued to pay Krum's salary
pursuant to his employment contract until December 17, 2004, when the contract
expired. According to Krum, the Cubs terminated him in retaliation for Krum informing
the general manager that "the head athletic trainer, the person responsible for making
certain that the athletes of the Cubs were able to perform to the best of their ability and
to quickly and adequately rehabilitate themselves from any injury, was not licensed to
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so act in the State of Illinois.@ Krum also alleged that he performed his duties
satisfactorily and was never disciplined or reprimanded or told of any deficiencies in his
work. Krum further alleged that, but for his disclosure that the head athletic trainer was
unlicensed, the Cubs would have retained Krum as an employee.
The Cubs filed a motion to dismiss Krum's complaint pursuant to sections 2-615
and 2-619 of the Code, which was supported with an affidavit from the Cubs' general
manager as well as a copy of Krum's employment contract. The circuit court granted
the motion pursuant to section 2-615 and Krum now appeals.
ANALYSIS
We review motions to dismiss de novo. Owens v. McDermott, Will & Emory, 316
Ill. App. 3d 340, 344 (2000). We assume as true all facts pleaded in the complaint.
Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 457 (1999). When reviewing
motions to dismiss pursuant to section 2-615, we ask only whether the pleadings are
sufficient to state a cause of action. Cwikla v. Sheir, 345 Ill. App. 3d 23, 29 (2003). We
may affirm the trial court=s order on any ground substantiated by the record. Kostal v.
Pinkus Dermatopathology Laboratory, Inc., 357 Ill. App. 3d 381, 384 (2005).
To state a cause of action for retaliatory discharge, a plaintiff must plead: (1) that
he or she has been discharged; (2) in retaliation for his or her activities; and (3) that the
discharge violates a clear mandate of public policy. Stebbings v. The University of
Chicago, 312 Ill. App. 3d 360, 365 (2000).
In granting the Cubs' motion to dismiss, the circuit court found that the
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Whistleblower Act (740 ILCS 174/1 (West 2004)) preempted Krum's claim for retaliatory
discharge and under the facts set forth in Krum's complaint, Krum was unable to
establish a claim based on the Whistleblower Act. The court also found that, even if
the Whistleblower Act did not preempt Krum=s retaliatory discharge claim, his claim still
failed because the Athletic Trainers Practice Act could not satisfy the policy element of
retaliatory discharge. The court further held that the failure to renew an employment
contract for a fixed duration could not serve as a basis for a retaliatory discharge claim.
Retaliatory Discharge
On appeal, Krum first contends the circuit court erred in holding that the failure to
renew an employment contract for a fixed duration could not satisfy the "discharge"
element in a cause of action for retaliatory discharge. Specifically, Krum argues that
Illinois courts have previously recognized retaliatory discharge actions based on an
employer=s failure to rehire, and that other jurisdictions have recognized the failure to
renew a contract as actionable retaliatory conduct. The Cubs counter that the
authorities upon which Krum relies are inapposite, and that his complaint must fail
because his employment contract with the Cubs provided for a fixed duration. We
agree with the Cubs.
The retaliatory discharge cause of action is a very narrow exception to the
doctrine of employment at-will. Palmateer v. International Harvester Co., 85 Ill. 2d 124,
128-29 (1981). Where an employment agreement does not specify a fixed duration,
either party can terminate the relationship Aat-will.@ Martin v. Federal Life Insurance Co.,
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109 Ill. App. 3d 596, 600 (1982). The parties may alter the at-will nature of the
relationship, however, by providing for a fixed duration of employment. Cress v.
Recreation Services, Inc., 341 Ill. App. 3d 149, 171 (2003).
In Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29 (1994), the Illinois
Supreme Court explained the scope of the retaliatory discharge cause of action. The
court defined an at-will employee as "a noncontracted employee [who] serves at the
employer=s will, and the employer may discharge such an employee for any reason or
no reason.@ Zimmerman, 164 Ill. 2d at 32 (emphasis added). Noting that previous
courts intended retaliatory discharge to be narrowly applied, the Zimmerman court
declined to recognize a cause of action predicated on retaliatory demotion. The court
stated that recognizing retaliatory demotion would "replace the well-developed element
of discharge with a new, ill-defined, and potentially all-encompassing concept of
retaliatory conduct or discrimination.@ Zimmerman, 164 Ill. 2d at 39. We are thus
constrained to interpret the elements of the retaliatory discharge cause of action
narrowly.
Here, because Krum's employment was subject to a contract of fixed duration, he
was not an at-will employee. Krum is unable to cite to a single case where Illinois
courts have permitted a plaintiff to bring a retaliatory discharge claim on the basis of a
fixed term employment contract. Nevertheless, he contends that AIllinois courts have
long recognized that retaliatory discharge actions for failure to rehire or recall are valid.@
In each case upon which Krum relies, the underlying claims were based on the
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Worker=s Compensation Act (820 ILCS 310/4(h) (West 2004)), which specifically
prohibits such retaliatory conduct. See Motsch v. Pine Roofing Co., 178 Ill. App. 3d
169, 175 (1989) (seasonal worker not recalled after filing worker=s compensation claim);
Klinkner v. County of DuPage, 331 Ill. App. 3d 48, 51 (2002) (denying plaintiff=s claim for
retaliatory failure to rehire or recall); Pietruszynski v. McClier Corp., 338 Ill. App. 3d 58,
64 (2003) (shielding employees from retaliation for testifying in worker=s compensation
proceedings).
Krum nevertheless points to cases from other jurisdictions that have recognized
retaliatory discharge claims based on refusal to rehire or recall. Again, in each of these
cases, the underlying claim was based on a statute or law that specifically prohibited
retaliatory failure to rehire or retaliatory discrimination. See Johnson v. Trustees of
Durham Technical Community College, 139 N.C. App. 676, 683, 535 S.E. 2d 357, 362
(2000) (recognizing claim where statute defined retaliation as any Aadverse employment
action@); Daly v. Exxon Corp., 55 Cal. App. 4th 39, 43, 63 Cal. Rptr. 2d 727, 729 (1997)
(permitting claim where statute defined retaliation to include demotion, suspension, or
any manner of adverse discrimination). See also Kramer v. Logan County School
District No. R-1, 157 F.3d 620, 621 (8th Cir. 1998) (federal gender discrimination law);
Smith v. Borough of Wilkinsburg, 147 F.3d 272, 275, (3d Cir. 1998) (federal age
discrimination law); Payne v. McLemore=s Wholesale & Retail Stores, 654 F.2d 1130,
1133 (5th Cir. 1981) (Civil Rights Act of 1964, 42 U.S.C. ' 2000e-3(a)).
Unlike the laws underlying these cases, the Athletic Trainers Practice Act, the
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statute upon which Krum relies, contains no language prohibiting retaliatory
employment conduct. Since our supreme court has consistently sought to restrict the
common law tort of retaliatory discharge, we hold that, absent a statutory basis,
contractual employees, such as Krum, cannot bring a claim for retaliatory discharge
when employers fail to renew an employment contract.
Because we find that Krum cannot satisfy the first element of his claim for
retaliatory discharge, we need not reach Krum's contention that the circuit court erred in
finding that the Whistleblower Act preempted Krum's claim for retaliatory discharge.
Motion for Leave to File an Amended Complaint
Krum=s final contention on appeal is that the circuit court erred in denying his
motion for leave to file an amended complaint. Subsequent to the circuit court's
dismissal of Krum's complaint, Krum made an oral motion for leave to file an amended
complaint. The circuit court denied Krum=s motion, finding that there were no additional
facts Krum could plead to cure the deficiencies in his complaint.
We review the circuit court=s decision for abuse of discretion. Clemons v.
Mechanical Devices Co., 202 Ill. 2d 344, 351-52 (2002). The factors we consider are
whether: (1) the proposed amendment would cure a defect in the pleadings; (2) the
proposed amendment would prejudice or surprise other parties; (3) the proposed
amendment is timely; (4) there were previous opportunities to amend the pleading.
Clemons, 202 Ill. 2d at 355-56.
Krum argues that he never proposed an amendment because the court never
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allowed him the opportunity to do so. He does not now propose an amendment either,
he only argues that it was improper for the circuit court to deny him the opportunity to
file an amended complaint. Notwithstanding Krum's contention, because we find that
Krum cannot establish that he was "discharged," he would be unable to allege any facts
to set forth a claim for retaliatory discharge. Therefore, the circuit court did not abuse its
discretion in denying his motion for leave to file an amended complaint.
Accordingly, we affirm the judgment of the circuit court.
Affirmed.
THEIS, J., with ERICKSON, J., concurring.
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