Answer

If I'm guessing right about your facts (you weren't actually fired), your best bet is probably to proceed under a detrimental reliance/fraudulent inducement theory. However, I'm still confirming that I have the most up to date case law on that issue. So hang tight on that one.

 

Basically, in two cases the Illinois Supreme Court [Kamboj v. Eli Lilly and Co., 2007 WL 178434 (N.D. Ill. 2007) (promise of a certain job title and a certain range of salary/benefits prevented a summary judgment on the employee's claim) and Quake Construction Inc. v. American Airlines Inc., 141 Ill. 2d 281, 565 N.E.2d 990 (1990)] found that an employee has a basis to assert fraudulent inducement based on oral misrepresentations.

 

But - hang tight, I want to make sure that I have the entire picture on that issue.

So, while I'm doing some additional research, you can go over this summary of the Illinois law.

 

As a general rule, Illinois follows the common law doctrine that at-will employment is terminable at any time for any or no cause. Palmateer v. International Harvester Co., 85 Ill. 2d 124, 128-30, 421 N.E.2d 876 (1981).

 

In 1978, the Illinois Supreme Court recognized a cause of action for retaliatory discharge and, thereby, created a limited exception to an employer's ability to freely discharge an at-will employee. Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (1978).

 

In order to state a valid claim for retaliatory discharge, a plaintiff must allege that he or she was discharged from employment in retaliation for his or her activities and that the discharge violates a clear mandate of public policy. Hinthorn v. Roland's of Bloomington, Inc., 119 Ill. 2d 526, 529, 519 N.E.2d 909 (1988).

 

If you want to give me more information about the details of how you reported the issue and exactly what the issue was, I can give you a better idea as to whether or not you engaged in activity that will be considered protected under the public policy exception. On the other hand, if you were not truly discharged but only "constructively discharged," you probably can't win in Illinois on this theory.

 

It appears that in Illinois, in the absence of an actual discharge, you can NOT state a cognizable causes of action for the public policy exception to the terminable at will doctrine.

 

In 1994 the Illinois Supreme Court refused to recognize the tort of retaliatory demotion in Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 645 N.E.2d 877 (1994).

In Zimmerman, the plurality decision stated, "the element of discharge in violation of a clear public policy is essential to the tort created" and declined the "plaintiff's request to extrapolate from the rationale of Kelsay a cause of action predicated on retaliatory demotion."

 

The logic of the proposition that the recognition of a cause of action for retaliatory demotion is the necessary extension of the tort of retaliatory discharge is difficult to deny. As the concurrence in Zimmerman observes:

• "If we do not have a cause of action for retaliatory demotion, we, in effect, will not have a cause of action for retaliatory discharge. We have invited those who wish to discharge in retaliation to simply demote in retaliation, and thereby escape the effect of the law." Zimmerman, 164 Ill. 2d at 46 (Bilandic, C.J., concurring, joined by Heiple, J.).

However, from what I see, to date, the Illinois Supreme Court has not expanded the tort of retaliatory discharge to encompass any behavior other than actual termination of employment. Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 163, 601 N.E.2d 720 (1992); Hinthorn, 119 Ill. 2d at 530-31.

 

The Court of Appeals in Illinois has rejected claims based on an employer's retaliatory actions short of actual discharge. Melton v. Central Illinois Public Service Co., 220 Ill. App. 3d 1052, 1056-57, 581 N.E.2d 423 (1991).

 

The Court of Appeals found that constructive discharge is not an actionable concept. Grey v. First National Bank, 169 Ill. App. 3d 936, 940-43, 523 N.E.2d 1138 (1988), cited approvingly in Hartlein, 151 Ill. 2d at 163; Scheller v. Health Care Service Corp., 138 Ill. App. 3d 219, 223-25, 485 N.E.2d 26 (1985).

 

Another civil tort that comes to mind for you is "intentional infliction of emotional distress." To win you would have to prove that: 1) the your employer's conduct was extreme and outrageous; 2) that your employer intended to inflict severe emotional distress or knew that there was a high probability that its conduct would do so; and 3) that your employer's conduct actually caused severe emotional distress.

 

Liability does not, however, extend to "mere insults, indignities, threats, annoyances, petty oppressions or trivialities." Public Finance Corp. v. Davis, 66 Ill. 2d 85, 89-90, 360 N.E.2d 765 (1976). Liability only attaches in circumstances where the defendant's conduct is " 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ***.' " Public Finance Corp., 66 Ill. 2d at 90, citing Restatement (Second) of Torts, §46, Comment d (1965).

 

In circumstances involving the abuse of a position of power, the extreme and outrageous nature of conduct may arise not so much from what is done as from the defendant's actual or apparent ability to damage the plaintiff's interests by his exercise of power or authority. Milton v. Illinois Bell Telephone Co., 101 Ill. App. 3d 75, 79, 427 N.E.2d 829 (1981).

 

However, in the absence of employer conduct calculated to coerce you to do something illegal, courts have generally declined to find an employer's retaliatory conduct sufficiently extreme and outrageous as to give rise to an action for intentional infliction of emotional distress. This reluctance seems to be grounded in a fear that, if the anxiety and stress resulting from discipline, job transfers, or even terminations could form the basis of an action for emotional distress, virtually every employee would have a cause of action. Miller v. Equitable Life Assurance Society of the United States, 181 Ill. App. 3d 954, 957-58, 537 N.E.2d 887 (1989); Harris v. First Federal Savings & Loan Ass'n, 129 Ill. App. 3d 978, 473 N.E.2d 457, 459 (1984).

 

The Illinois Supreme Court held in Public Finance Corp., 66 Ill. 2d at 90:

• "The emotional distress must be severe. Although fright, horror, grief, shame, humiliation, worry, etc. may fall within the ambit of the term 'emotional distress,' these mental conditions alone are not actionable. 'The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.' Comment j. See also Prosser, Law of Torts sec. 12, at 54 (4th ed. 1971)."

 

So two things - let me do more research on fraudulent inducement/detrimental reliance and you let me know more about the facts for public policy . . . however, if you were not fired . . . . it probably won't matter because constructive discharge won't make out a claim in Illinois under the public policy exception.

Edited by Experienced Attorney on 2/19/2009 at 5:04 PM

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