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Sherman v. Kraft Gen. Foods

Appellate Court of Illinois, Fourth District

February 14, 1995, SUBMITTED ; June 8, 1995, FILED

NO. 4-94-0772

Opinion

 [*834]  [**709]  [****531]    JUSTICE COOK delivered the opinion of the court:

Plaintiff, David Sherman, appeals an order of the trial court dismissing his third-amended complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-615). The complaint alleged defendant, Kraft General Foods, Inc. (Kraft), terminated him from his employment in retaliation for reporting to Kraft an asbestos-related hazard in the workplace. On appeal, plaintiff contends he sufficiently pleaded [***2]  (1) Kraft terminated him in retaliation for his activities; and (2) the termination violated a clearly mandated public policy. We agree and reverse.

Plaintiff made the following allegations in his third-amended complaint. He worked for Kraft from October 14, 1986, to May 12, 1992, at its facility in Champaign. While at Kraft, plaintiff became aware of the existence of a white dusty material in his work area. Plaintiff inquired as to the composition of the material, and John Getchel, "Plaintiff's safety representative," told him it may be asbestos. According to the complaint, the position of safety representative at Kraft includes the following duties:

"receiving information from Defendant's employees regarding the safety and health conditions of the safety representative's assigned departments; remedying any safety or health hazards within the safety representative's designated department; and further reporting to Defendant any safety or health hazards that the safety representative is unable to remedy alone."

Plaintiff himself had previously been "appointed" safety representative. On May 11, 1992, plaintiff verbally reported the location of the material to Getchel,  [***3]  "the individual to whom Plaintiff was to report any unsafe conditions or health hazards within Plaintiff's work area."  [*835]  Neither Getchel nor any other Kraft representatives informed plaintiff of any additional procedures necessary to report asbestos-related safety and health hazards.

Plaintiff told Getchel he intended to retrieve a piece of exposed and deteriorating insulation. After informing Getchel of his intentions, plaintiff retrieved a piece of the insulation so he could report the hazard to Kraft or, if necessary, to the Occupational Health and Safety Administration (OSHA). After plaintiff retrieved the insulation, Getchel told him to give it to plaintiff's immediate supervisor, Kirk Luna. Getchel also said Kraft would not want any asbestos-related hazards reported. Since Luna was not on duty on May 11, 1992, plaintiff sealed the insulation in a plastic bag and placed it in his toolbox with the intention of giving it to Luna the following day and, if necessary, to OSHA. On May 12, 1992, plaintiff's toolbox was confiscated, and the material was tested and  [**710]   [****532]  determined to contain asbestos. On May 14, 1992, Kraft terminated plaintiff.

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272 Ill. App. 3d 833 *; 651 N.E.2d 708 **; 1995 Ill. App. LEXIS 407 ***; 209 Ill. Dec. 530 ****

DAVID SHERMAN, Plaintiff-Appellant, v. KRAFT GENERAL FOODS, INC., Defendant-Appellee.

Subsequent History:  [***1]  Released for Publication July 7, 1995. As Corrected July 18, 1995.

Prior History: Appeal from Circuit Court of Champaign County. No. 93L1137. Honorable John G. Townsend, Judge Presiding.

Disposition: Reversed.

CORE TERMS

public policy, hazards, discharged, terminated, reporting, retaliatory discharge, cause of action, OSH Act, allegations, retaliation, asbestos, mandated, pleaded, employees, occupational health

Civil Procedure, Appeals, Standards of Review, De Novo Review, Commercial Law (UCC), Secured Transactions (Article 9), Default, General Overview, Judgments, Pretrial Judgments, Judgment on Pleadings, Labor & Employment Law, Wrongful Termination, Public Policy, Workers' Compensation & SSDI, Coverage, Actions Against Employers, Retaliatory Discharge Actions, Employment Relationships, At Will Employment, Exceptions, Tort Exceptions, Public Policy Violations, Governments, Legislation, Statutory Remedies & Rights, Business & Corporate Compliance, Workers' Compensation & SSDI, Administrative Proceedings, Fraud, Claims, Labor & Employment Law, Occupational Safety & Health, Civil Liability Under OSHA, Duties & Rights, Energy & Utilities Law, Regulators, US Nuclear Regulatory Commission