Opinion
No. 3:05-CV-00486-DRH.
November 9, 2005
DeFRANCO BRADLEY, PLC.
James E. DeFranco, O'Fallon, IL ATTORNEYS FOR DEFENDANT UNITED STATES STEEL CO.
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT FACTS
Plaintiff filed a complaint on July 12, 2005, setting forth a claim for retaliatory discharge. Defendant filed a motion to dismiss, and on September 28, 2005, the court granted defendant's motion. In plaintiff's first amended complaint, plaintiff makes allegations similar to those plaintiff made in his original complaint. Plaintiff alleges that he was employed by Wright Industrial Maintenance, Inc., (hereinafter "Wright") and had an employment contract with Wright. Plaintiff further alleges that defendant interfered with this contract, as well as with plaintiff's "prospective economic advantage," and that these alleged interferences somehow brought about the termination of his employment with Wright. (First Amended Complaint).
ARGUMENT
While plaintiff changed the titles of the counts of his complaint, he is still basically alleging a claim for retaliatory discharge against defendant. His entire complaint is based upon allegations that he was injured while working on defendant's premises, and that his employer, Wright, thereafter fired him.
In Illinois, "the only proper defendant in a retaliatory discharge action is the plaintiff's former employer." Buckner v. Atlantic Plain Maintenance, Inc., 182 Ill.2d 12, 694 N.E.2d 656, 570 (Ill. 1998). Plaintiff alleges that his employer was Wright. Accordingly, any complaint for retaliatory discharge must be dismissed as plaintiff has not sued his employer. If plaintiff is attempting to impose liability against defendant for alleged retaliatory discharge by attempting to allege a claim for some other tort, such as intentional interference with contractual relations, this court should not permit plaintiff to do so since the Illinois Supreme Court has expressly held:
Limiting the potential defendants in a retaliatory discharge action to employers is particularly appropriate in a case such as this where the alleged unlawful reason for the termination was the plaintiff's pursuit of workers' compensation benefits. Under the Workers' Compensation Act, workers' compensation benefits are paid to an insured employee by the employer. See 820 ILCS 305/11 (West 1996). Presumably, the intent of an employer who adopts a policy of firing employees for seeking workers' compensation benefits is to avoid having to pay such benefits to employees. Accordingly, it is only the employer who has a "motive" to fire an employee for seeking workers' compensation benefits. The retaliatory discharge claim is therefore properly brought against the employer.182 Ill.2d at 22, 694 N.E.2d at 570.
Moreover, plaintiff fails to set forth the requisite elements of a claim of tortious interference with a prospective economic advantage. The tort of interference with a prospective economic advantage is another name for the tort of intentional interference with a business relationship. Delphi Indus., Inc. v. Stroh Brewery Co., 945 F.2d 215, 217 n. 1 (7th Cir. 1991). Plaintiff must plead and prove, (1) plaintiff's reasonable expectation of continued employment; (2) knowledge of the business relationship by the interferor; (3) intentional interference; and (4) resultant damage. Stafford v. Purofied Down Products Corp., 801 F.Supp. 130, 136 (N.D.Ill. 1992).
Plaintiff does not allege that he had a reasonable expectation of continued employment with defendant, a contractor. A subcontractor's employee does not have a reasonable expectation of continued employment with a contractor. Lusher v. Becker Bros., Inc., 155 Ill.App.3d 866, 870, 509 N.E.2d 444, 446 (3rd Dist. 1987). In Lusher v. Becker Bros., Inc., with facts very similar to those here, a subcontractor's employee sued the contractor for interference with a business relationship. The court dismissed plaintiff's claim, recognizing the uniqueness of a factual situation in which "the party charged with tortious interference is also the party for whom the work is to be performed." Lusher, 155 Ill.App.3d at 870, 509 N.E.2d at 446. The court then opined that, while plaintiff may have had a reasonable expectation of continued employment with his actual employer, he had no reasonable expectation to continue to do work for the contractor; the court reasoned, "certainly [the contractor] ought to have a say as to who will be doing the work." Lusher, 155 Ill.App.3d at 870, 509 N.E.2d at 446; see also, Williams v. Shell Oil Co., 18 F.3d 396, 402 (7th Cir. 1994) (agreeing with Lusher's conclusion).
CONCLUSION
For the foregoing reasons, the court should dismiss plaintiff's first amended complaint with prejudice.