Zimmerman v. Buchheit of Sparta, Inc.

JUSTICE HARRISON,

dissenting:

Although the plurality professes not to reach issues concerning the factual sufficiency of plaintiff’s complaint (164 Ill. 2d at 44), it expressly holds that the complaint is conclusory (164 Ill. 2d at 40) and lacks the requisite specificity (164 Ill. 2d at 40). This is not so. The Code of Civil Procedure provides,

"No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 612(b).)

Zimmerman’s complaint plainly meets this test. It avers that she was demoted and discriminated against by her employer because she wanted to claim workers’ compensation benefits for injuries she sustained in the course of her employment. The complaint specifies the date she sustained her injuries, and the date the employer took retaliatory action against her. The complaint further specifies how the retaliation affected her employment. Her income fell, and her benefits were reduced.

To allege an action for retaliatory demotion, that is all Zimmerman needed to plead. Although the precise nature of her demotion is not specified, it did not need to be. The salient point is that Zimmerman had her pay and benefits cut because she wanted to claim workers’ compensation benefits. Whether the reductions were accompanied by a change in job title or responsibilities or whether they resulted from a simple reduction in the hours she was allowed to work is irrelevant. Such details would not alter the basic nature of Zimmerman’s claim or affect her employer’s ability to defend against it.

Even if greater specificity were required, that would not provide an independent basis for dismissing Zimmerman’s complaint with prejudice. A cause of action should not be dismissed with prejudice on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61.) This is not such a case. There is no reason to believe that Zimmerman could not provide copious additional details regarding the circumstances of her demotion and her employer’s discrimination against her if only she were given leave to amend her complaint.

The plurality may protest that Zimmerman did not in fact seek such leave from the circuit court. Although this is true, it is also true that she had no need to do so. In the proceedings before the circuit court, the details of Zimmerman’s demotion and her resulting injury were not at issue. The dispute there turned solely on the narrow legal question of whether an employee has a cognizable claim under Illinois law where her employer demotes or discriminates against her based on her desire to claim workers’ compensation benefits. To hold that Zimmerman should have looked beyond this and sought leave to amend even though no deficiency was raised would be manifestly unjust.

Even if the employer had challenged the sufficiency of the factual allegations in Zimmerman’s complaint, the plurality’s position woqld still fail. The question of whether a complaint absolutely fails to indicate any legally cognizable ground of liability can be raised at any time. Where, however, the complaint is claimed to be defective simply because its statement of a cause of action is incomplete or otherwise insufficient, the defects are subject to waiver. (Wagner v. Kepler (1951), 411 Ill. 368, 371.) Waiver will be found when a defendant answers the complaint without objection (see Pieszchalski v. Oslager (1984), 128 Ill. App. 3d 437, 444), particularly if the defect could have been remedied by amendment (see Meadows v. State Farm Mutual Automobile Insurance Co. (1992), 237 Ill. App. 3d 240, 253).

These principles are applicable here. Although the plurality does not mention it, the record shows that the employer’s motion to dismiss was not filed until after it had already obtained an order granting its motion to transfer, filed its answer and responded to discovery. In addition, as previously noted, there is no reason to doubt that Zimmerman could have cured any insufficiency in her factual allegations had she known at the outset that she needed to. Once the employer proceeded past the pleading stage, the sufficiency of the factual allegations in Zimmerman’s complaint was therefore no longer subject to challenge in a section 2 — 615 (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615) motion. Adcock v. Brakegate, Ltd. (1994), 164 Ill. 2d 54.

The plurality’s criticism of the allegations in the complaint enables the court to shift blame to Zimmerman for the harsh result it reaches today. This is wholly uncalled for. If the law commands a certain result, that is the result this court should reach. We do not also need to find personal fault with the parties or establish some shortcoming on the part of their attorneys in order to justify our position.

The plurality’s criticism of Zimmerman’s pleadings is also disconcerting because it is not necessary to the disposition. From consideration of the plurality’s opinion as a whole, it is apparent that no set of facts would have persuaded the court to recognize her cause of action. No matter what Zimmerman may have pleaded, the plurality would have refused to allow her to proceed on a theory of retaliatory demotion.

The plurality’s analysis conceptualizes retaliatory demotion as an expansion of the tort of retaliatory discharge, just as constructive discharge would be. Because no common law claim is allowed in constructive discharge situations, the plurality reasons that it would be inconsistent to allow a claim here. The basic flaw in this analysis is that the tort of retaliatory demotion is not a variant of retaliatory discharge, but rather a companion to it.

The case before us concerns adverse action taken against an employee who sought to assert her rights under the Workers’ Compensation Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.). In recognizing the tort of retaliatory discharge, this court relied, in part, on that portion of section 4(h) of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.4(h)) which makes it unlawful for an employer to discharge an employee who seeks to exercise his rights under the Act. (See Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 182-85.) Discharge is not, however, the only prohibition contained in the statute. As the plurality here correctly points out, there is a parallel provision in section 4(h) which likewise makes it unlawful for an employer to discriminate against an employee who seeks to exercise his rights under the Act. Ill. Rev. Stat. 1991, ch. 48, par. 138.4(h).

Under the statute, these parallel provisions are of equal force. Accordingly, if the prohibition against discharge evinces a public policy whose violation can only be redressed through a civil action for damages, and we have clearly held that it does (Kelsay, 74 Ill. 2d at 185), how can we reach a different conclusion with respect to the prohibition against discrimination, which is the basis for Zimmerman’s claim here? There is no principled way to distinguish the two situations. The "comprehensive scheme” enacted by the legislature "to provide for efficient and expeditious remedies for injured employees” (Kelsay, 74 Ill. 2d at 182) would be no less undermined if employers were permitted to discriminate against employees for seeking compensation under the Act than it would be if they were permitted to discharge such employees.

The plurality frets that it might be too hard for courts to decide when actionable discrimination has taken place. Such a concern scarcely merits comment. Courts in the United States are routinely called upon to pass on questions of workplace discrimination. (See, e.g., 45A Am. Jur. 2d Job Discrimination § 1 et seq. (1993).) The task may not be an easy one, but it is surely no more difficult than countless other issues that we, as judges, must resolve every day. I am confident that my colleagues on the bench would be able to meet the challenge.

In any event, whatever difficulties there might be with defining actionable discrimination, they do not exist in the particular case before us today. Unlike the examples given by the plurality (164 Ill. 2d at 39), Zimmerman does not allege that she was demoted only in the sense of suffering a loss of title or status or a transfer from one department to another. The demotion she alleges involved a loss of income and benefits. Injuries of that kind would clearly be subject to redress under any standard.

If situations should arise which are more ambiguous, we can deal with them on a case-by-case basis. The court’s fear of uncertainties which are not yet realized is no reason to impose an absolute bar to recovery. Accordingly, I would affirm the judgment of the appellate court, reverse the judgment of the circuit court, and remand so that Zimmerman’s cause of action could proceed beyond the pleadings stage. I therefore dissent.

JUSTICE NICKELS joins in this dissent.