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SECOND DIVISION
February 10, 2004

No. 1-03-0741

JUSTICE CAHILL delivered the opinion of the court:

Chicago Commons Association (CCA) filed a lawsuit against its employee, DarrellHancock, seeking reimbursement for overpaid wages. CCA discharged Hancock shortly after hefiled his appearance in the case. Hancock brought a retaliatory discharge counterclaim againstCCA that was dismissed under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS5/2-615 (West 2002)). The trial court entered a finding under Supreme Court Rule 304(a) (155Ill. 2d R. 304(a)), and Hancock appeals. We affirm.

On January 22, 2002, CCA filed a two-count complaint against Hancock, alleging unjustenrichment and wrongful withholding of an overpayment in wages. Hancock filed an appearanceafter receiving a summons and copy of the complaint. On April 26, 2002, 15 days after Hancockfiled his appearance, CCA terminated Hancock's employment. Hancock filed a counterclaim,alleging he was wrongfully discharged in retaliation for defending against the lawsuit.

CCA moved to dismiss Hancock's counterclaim under section 2-615 of the Code, arguingHancock failed to state a claim on which relief could be granted. The trial court granted CCA'smotion and found no just reason to delay enforcement or appeal of the order. We review the trialcourt's order de novo. See Brandt v. Boston Scientific Corp., 204 Ill. 2d 640, 644-45, 792N.E.2d 296 (2003).

The issue we review is whether, after accepting all well-pled facts as true, thecounterclaim stated a cause of action for retaliatory discharge. See Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 491, 713 N.E.2d 543 (1999).

Our supreme court has restricted the common law tort of retaliatory discharge. See Fisherv. Lexington Health Care, Inc., 188 Ill. 2d 455, 467, 722 N.E.2d 1115 (1999); Zimmerman v.Buchheit of Sparta, Inc., 164 Ill. 2d 29, 37-38, 645 N.E.2d 877 (1994). Retaliatory discharge is alimited exception to the general rule that an at-will employee is terminable at any time for any orno cause. Geary v. Telular Corp., 341 Ill. App. 3d 694, 700, 793 N.E.2d 128 (2003). Toestablish a cause of action for retaliatory discharge, a claimant must show: (1) he was dischargedin retaliation for his activities; and (2) the discharge violated a clearly mandated public policy. King v. Senior Services Associates, Inc., 341 Ill. App. 3d 264, 267, 792 N.E.2d 412 (2003). While there is no precise definition of a clearly mandated public policy, our supreme court hassaid:

"[P]ublic policy concerns what is right and just and what affects the citizens of the Statecollectively. It is to be found in the State's constitution and statutes and, when they aresilent, in its judicial decisions. [Citation.] Although there is no precise line of demarcationdividing matters that are the subject of public policies from matters purely personal, *** amatter must strike at the heart of a citizen's social rights, duties, and responsibilities beforethe tort will be allowed." Palmateer v. International Harvester Co., 85 Ill. 2d 124, 130,421 N.E.2d 876 (1981).

Illinois courts have allowed retaliatory discharge actions in two settings: (1) when an employee isdischarged for filing, or in anticipation of the filing of, a claim under the Workers' CompensationAct (820 ILCS 305/1 et seq. (West 2002)); and (2) when an employee is discharged in retaliationfor reporting illegal or improper conduct by the employer, otherwise known as "whistle-blowing." Jacobson v. Knepper & Moga, P.C., 185 Ill. 2d 372, 376, 706 N.E.2d 491 (1998). Hancock doesnot argue his claim fits within either of these categories. Rather, he asks that we create a thirdcategory that would allow an at-will employee who was discharged for complying with asummons in a wage dispute lawsuit to bring a retaliatory discharge action against his employer.

Hancock relies on Anderson v. Village of Oswego, 109 F. Supp. 2d 930 (N.D. Ill. 2000). The court allowed a retaliatory discharge action when the employee was fired because he obeyeda subpoena and testified against his employer. The court observed that under Illinois law, "thereis really no telling what will be found to constitute a public policy sufficient to support aretaliatory discharge claim." Anderson, 109 F. Supp. 2d at 934. We respectfully disagree withthis aspect of the court's analysis. See Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d257, 276, 746 N.E.2d 254 (2001) (Illinois courts are not bound by federal cases interpreting statelaw). An action that violates public policy "must strike at the heart of a citizen's social rights,duties, and responsibilities before the tort will be allowed." (Emphasis added.) Palmateer, 85 Ill.2d at 130. While the supreme court has not tried to spell out all circumstances that meet thisthreshold, it is clear from the words the court has chosen that the threshold is high and thecircumstances limited.

Regardless, Anderson does not stand for the proposition that an employee's compliancewith a subpoena is a protected activity per se. The plaintiff in Anderson alleged he wasdischarged for obeying a subpoena and testifying against his employer in a lawsuit involving acontract dispute. Anderson, 109 F. Supp. 2d at 934. The court denied the defendant's motion todismiss the plaintiff's complaint, finding that the plaintiff's testimony fell within the whistle-blowerexception announced by our supreme court. Anderson, 109 F. Supp. 2d at 934.

We reached a similar conclusion in Pietruszynski v. McClier Corp., Architects &Engineers, Inc., 338 Ill. App. 3d 58, 788 N.E.2d 82 (2003). The plaintiffs there filed a retaliatorydischarge action, alleging they were wrongfully discharged for complying with a subpoena andtestifying on behalf of a coworker in a workers' compensation hearing. Pietruszynski, 338 Ill.App. 3d at 60. We found that the plaintiffs' participation in the workers' compensation hearingwas a protected activity consistent with the public policy underlying the Workers' CompensationAct. Pietruszynski, 338 Ill. App. 3d at 64.

The issue here is not simply whether Hancock's compliance with a court summons is aprotected activity, but whether, in looking at the nature of the underlying action, Hancock'sdefense of the lawsuit is an activity that strikes at the heart of his social rights, duties andresponsibilities. It is clear that Hancock's defense of CCA's complaint does not implicate the twoprotected activities announced by our supreme court-an assertion under the Workers'Compensation Act or the reporting of illegal or improper conduct of an employer. See Jacobson,185 Ill. 2d at 376. We must therefore decide whether the facts of this case warrant an expansionof the common law tort of retaliatory discharge.

In McGrath v. CCC Information Services, Inc., 314 Ill. App. 3d 431, 731 N.E.2d 384(2000), we considered whether an employee who was discharged after filing a lawsuit against hisemployer under the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West1996)) could amend his complaint to include a claim for retaliatory discharge. The underlyingdispute involved conditional stock options and calculation of the employee's year-end bonus. McGrath, 314 Ill. App. 3d at 435. We found that the dispute was economic in nature and did notstrike at the heart of the employee's social rights, duties and responsibilities. McGrath, 314 Ill.App. 3d at 440. "[The employee's] claim is more in the nature of a private and individualgrievance insufficient to justify a claim of wrongful discharge." McGrath, 314 Ill. App. 3d at 440. See also Zientara v. Long Creek Township, 211 Ill. App. 3d 226, 244, 569 N.E.2d 1299 (1991)(wage disputes are personal matters that do not involve clearly mandated public policy).

Kavanagh v. KLM Royal Dutch Airlines, 566 F. Supp. 242 (N.D. Ill. 1983), concerned adispute that arose when an employer threatened to deduct future wages of its employee based onan alleged overpayment. The employee was discharged because he retained an attorney torepresent him with respect to the dispute and threatened to file a lawsuit if the employer reducedhis salary. Kavanagh, 566 F. Supp. at 243-44. The court dismissed the action, finding that anemployee's retention of a lawyer and anticipated filing of a lawsuit over wages was not aprotected activity that could give rise to a retaliatory discharge action. Kavanagh, 566 F. Supp. at244.

The underlying dispute here involves a wage dispute. Hancock has not cited, nor are weaware of, authority to support a finding that there is a clear mandate of public policy in our statefavoring a person's right to defend against a lawsuit over wages. To the contrary, based on ourreading of McGrath and Kavanagh, we find that Hancock's right to defend against CCA'scomplaint is nothing more than an economic right and does not strike at the heart of Hancock'ssocial rights, duties and responsibilities.

Hancock alternatively argues that CCA's decision to fire him implicates the due processand equal protection clause of the Illinois Constitution. Ill. Const. 1970, art. I,