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FIFTH DIVISION

December 29, 2000

Nos. 1-99-0345)

1-99-3441)

JUSTICE THEIS delivered the opinion of the court:

Commonwealth Edison and David Andrews⁽¹⁾ (ComEd) appeal from anorder denying their motion to dismiss pursuant to section 2-615 of theIllinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West1998)) on the retaliatory discharge count, which is appeal number 1-99-0345. James Graham (Graham) appeals from an order dismissing hisintentional infliction of emotional distress count under section 2-615of the Code, which is appeal number 1-99-3441.

Graham filed his third amended complaint against ComEd, allegingdefamation, intentional infliction of emotional distress, negligentinfliction of emotional distress and retaliatory discharge. ComEdfiled a motion to dismiss Graham's complaint pursuant to section 2-615, alleging that the complaint failed to state a cause of actionupon which relief could be granted. The trial court granted themotion with prejudice with respect to the defamation and negligentinfliction of emotional distress counts. ComEd sought aninterlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2dR. 308) and the circuit court certified the retaliatory dischargequestion: whether plaintiff has stated a claim for retaliatorydischarge where plaintiff has not been terminated and actuallycontinues to work for the defendant, but where the plaintiff hasallegedly been demoted. This court then accepted the question forappeal number 1-99-0345 under Supreme Court Rule 308.

The circuit court denied ComEd's motion for interlocutory appealwith respect to the intentional infliction of emotional distressclaim. ComEd then renewed its motion, which was denied. ComEdbrought a second motion to dismiss the intentional infliction ofemotional distress claim pursuant to section 2-615, which was granted. Graham then appealed from that final order, constituting the secondappeal here, number 1-99-3441. These appeals were then consolidated. We now reverse on both appeals. The retaliatory discharge claim isdismissed, and we remand the intentional infliction of emotionaldistress claim to the trial court.

Graham and ComEd present three issues in these consolidatedappeals: (1) whether count IV of Graham's third amended complaintstates a cause of action for retaliatory discharge where Grahamcontinues to work for ComEd but has been discharged from hismanagerial position; (2) whether, if Graham was not discharged fromhis position, Graham has adequately pleaded retaliatory demotion andwhether Illinois law recognizes a cause of action for retaliatorydemotion; and (3) whether count II of Graham's third amended complaintstates a cause of action for intentional infliction of emotionaldistress where Graham alleged that ComEd abused its position of powerover Graham and engaged in a campaign of harassment against himbecause Graham reported that ComEd was violating nuclear safetyregulations.

Graham's complaint against ComEd alleges that he was demotedafter making complaints concerning safety issues and statutoryviolations at ComEd's Dresden nuclear power station. In hiscomplaint, Graham states that he began working for ComEd in July 1983as a general clerk in the ComEd data processing department. Late thatyear, Graham was promoted to the position of nuclear plant operatorand, in 1988, to health physics technician. At all times, he"performed his job duties and responsibilities in an above averagemanner." In 1995, Graham was promoted to acting foreman and leadradiation technician where he had managerial and supervisory duties.

In December 1995, the United States Nuclear Regulatory Commission(NRC) began an independent investigation into allegations of safetyviolations, as well as harassment, intimidation and discrimination atthe Dresden station. Graham reported safety violations to hissupervisors, ComEd's quality first department, which was designed tohandle employee concerns anonymously, and finally to the NRC inDecember 1995 and January 1996. Shortly thereafter, ComEd began itsown independent investigation concurrently with the NRC investigation. The NRC instructed ComEd to immediately report any informationresulting from its internal investigation to the NRC. According tothe allegations of the complaint, at the time ComEd joined theinvestigation, it was aware of who was responsible for the vandalismand harassment incidents and knew Graham was not one of thoseindividuals.

ComEd then began the investigation into Graham. During theinvestigation, ComEd revealed to Graham that it knew he had madeanonymous complaints to the quality first department and then gaveGraham the choice of resigning or facing prosecution for harassing andintimidating coworkers. Graham refused to resign and was thenescorted out of the building on a two-week suspension. Graham latermet with the NRC investigators, who stated that they had no knowledgeof any allegations against Graham and had never even heard his namebefore. Twenty of Graham's coworkers then started a letter-writingcampaign, denying the allegations against Graham and praising his workperformance and people skills.

ComEd then began interviewing over 100 employees concerning theallegations against Graham. ComEd, the complaint alleges, hadknowledge that these allegations against Graham were false. In theinterviews, ComEd made several allegedly defamatory statements andthen requested that the interviewees confirm their knowledge of thisbehavior. The statements alleged that Graham planted radioactivematerial outside the posted area for such material and that hefalsified documents. ComEd stated that Graham threatened coworkersand supervisors with physical violence and that he had "beaten peopleup." The statements also alleged that Graham followed a womancoworker home one evening and threatened her with physical violenceand had sexually harassed women coworkers. Additional allegationsincluded that Graham damaged cars and other property at the Dresdenstation, interfered with ComEd's investigation by telling employeesnot to answer the investigator's questions or otherwise cooperate andthat Graham and another employee were the leaders of a gang called the"Magnificent Seven." During the investigation, Graham and anothercoworker were reassigned to an abandoned facility, the Mazon facility,for almost two months. At that facility, they had to remain in oneroom for the entire day with virtually no work to do.

As a result of these allegations, Graham alleges he has sufferedsevere mental and emotional distress. He spoke with someone at theComEd employee assistance program who referred him to a therapist uponhis request. In February 1996, Graham began seeing a psychologist. Graham also complained of physical manifestations of this job-relateddistress; he suffered from headaches, stomach discomfort, lack ofsleep, and loss of appetite and saw a dermatologist for stress-relatedacne. Graham repeatedly informed ComEd of this distress and also thatthe stress was ruining his marriage.

In April 1996, ComEd finished its investigation and found theallegations against Graham to be unsubstantiated. However, ComEdnever informed its employees that the charges against Graham werefalse. ComEd then transferred Graham back to the Dresden station, not as acting foreman, but as a nuclear plant operator. Grahamrequested to be reinstated to his former position, but was told he hadno choice in the matter. The new position resulted in a pay cut, ademotion and no supervisory or managerial duties. He was thentransferred to the radiation department as a health physicstechnician. Since then, he has not been promoted or given anymeaningful job responsibilities.

In count II of the complaint, Graham asserts a claim forintentional infliction of emotional distress. Graham alleges that the7