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THIRD DIVISION
FILED: 10/30/02

The plaintiff, Darryl N. Veazey, filed a three-count complaintagainst the defendant, LaSalle Telecommunications, Inc. (LaSalle),asserting causes of action for retaliatory discharge, civilconspiracy, and negligent spoliation of evidence. LaSalle moved todismiss each of the counts pursuant to section 2-615 of the Code ofCivil Procedure (Code) (735 ILCS 5/2-615 (West 2000)). The circuitcourt granted LaSalle's motion, and the plaintiff filed a timelynotice of appeal. For the reasons which follow, we affirm.

The plaintiff's complaint alleges as follows. The plaintiffwas employed by LaSalle from 1989 until October 25, 1996. InSeptember 1996, the plaintiff's immediate superior, Ralph Newcomb,received a threatening message on his voice mail. Severalindividuals for whom the message was played believed that the voiceon the message was that of the plaintiff. The matter was reportedto the police. Approximately one month later, a female caller lefta message on Newcomb's voice mail threatening Newcomb's wife.

On October 22, 1996, the plaintiff was summoned to LaSalle'sregional office and questioned regarding the threatening messagesby Mike Mason, LaSalle's Customer Fulfillment Manager, and JackBurke, who was identified to the plaintiff as a "LaSalletroubleshooter." The plaintiff denied leaving any threateningmessages on Newcomb's voice mail but was, nevertheless, ordered toread a transcript of the threatening message so that a recording ofhis voice could be made for comparison purposes. The plaintiffrefused and was suspended from his job without pay.

The plaintiff next met with Mason and Burke on October 25,1996, and was again ordered to provide a recording of his voicereading a transcript of the threatening message. When theplaintiff refused, his employment with LaSalle was terminated.

The plaintiff filed a three-count complaint against LaSalle. Count I is a claim for retaliatory discharge, asserting that theplaintiff was fired "in retaliation for his invoking his rightsagainst self incrimination as protected by the Illinois and UnitedStates Constitutions." Count II is a claim for civil conspiracy,charging that Mason and Burke conspired to terminate the plaintiffbecause he "was Black and because he refused to leave incriminatingvoice mail messages ***." Count III is a claim for negligentspoliation of evidence, alleging that LaSalle has lost, misplacedor destroyed certain evidentiary materials, including theplaintiff's personnel file and micro cassette recordings of thethreatening voice mail messages left on Newcomb's voice mail,making it "more difficult for him [the plaintiff] to succeed in hislitigation to recover the damages to which he is entitled."

LaSalle moved to dismiss each of the counts of the plaintiff'scomplaint for failure to state causes of action upon which reliefmight be granted. Specifically as to count I, LaSalle argued thatthe plaintiff failed to state a claim for retaliatory dischargebecause he had not and could not allege that his termination was inviolation of any clearly mandated public policy. In moving todismiss count II, the plaintiff's civil conspiracy claim, LaSalleargued that it could not be held liable for conspiring with its ownagents, Mason and Burke, as there can be no conspiracy between aprincipal and its agent. LaSalle further argued that the plaintiffcould not recover against it in a common law action for an allegedconspiracy to violate his civil rights. As to count III, LaSalleargued that, since the plaintiff cannot recover against it oneither count I or count II of his complaint, he cannot satisfy thecausation element of an action for negligent spoliation ofevidence.

The circuit court granted LaSalle's motion and dismissed allthree counts of the plaintiff's complaint with prejudice. Thisappeal followed.

Because this matter was disposed of at the trial level on thedefendant's motion to dismiss pursuant to section 2-615 of theCode, the only question before this court is whether the dismissedcounts state causes of action upon which relief can be granted. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 504-05,565 N.E.2d 654 (1990). The issue presented is one of law, and ourreview is de novo. Metrick v. Chatz, 266 Ill. App. 3d 649, 651-52,639 N.E.2d 198 (1994).

In determining whether sufficient facts are stated in thecomplaint which, if established, could entitle the plaintiff torelief, we must take the well-pled facts in the complaint as trueand draw all reasonable inferences from those facts which arefavorable to the plaintiff. Ziemba v. Mierzwa, 142 Ill. 2d 42, 46-47, 566 N.E.2d 1365 (1991). However, conclusions of law or factcontained within the complaint will not be taken as true unlesssupported by specific factual allegations. Ziemba, 142 Ill. 2d at47.

The tort of retaliatory discharge is an exception to thegeneral rule that "at-will" employment is terminable at any timefor any or no cause. Palmateer v. International Harvester Co., 85Ill. 2d 124, 128, 421 N.E.2d 876 (1981). In order to recover upona claim of retaliatory discharge, a plaintiff must establish thathe was discharged in retaliation for his activities and that thedischarge violated a clear mandate of public policy. Hartlein v.Illinois Power Co., 151 Ill. 2d 142, 160, 601 N.E.2d 720 (1992). In this case, the plaintiff has pled both that he was dischargedfrom his employment with LaSalle and that his discharge was as aconsequence of his activities, namely, refusing to read atranscript of the threatening message left on Newcomb's voice mail. The question is whether the facts as alleged establish that theplaintiff's discharge was in violation of a clear mandate of publicpolicy.

The plaintiff argues that the public policy violated by hisdischarge is the protection of the privilege against self-incrimination guaranteed by both the Fifth amendment to the UnitedStates Constitution (U.S. Const., amend. V) and article I, section10 of the Illinois Constitution (Ill. Const. 1970, art I, sec. 10). LaSalle argues that a voice exemplar, such as that requested of theplaintiff, is not a testimonial statement and, as such, neither theFederal nor the state constitutional privilege against self-incrimination protects a person from being required to give one.LaSalle further asserts that the privilege against self-incrimination acts as a restraint upon the government only, not a limitationupon the activities of a private party.

As a preliminary matter, we will address the plaintiff'scontention that his complaint does not allege that he was directedto give a voice exemplar. The term "exemplar" is defined as "onethat serves as a model or example." Webster's Third NewInternational Dictionary 795 (1993). Interpreted in their lightmost favorable to the plaintiff, the allegations of the complaintassert nothing more than the fact that the plaintiff was directedto "provide a tape recording of his voice reading the transcript ofthe message allegedly left" on Newcomb's voice mail so that LaSalle"could compare it to the threatening message left for Mr. Newcomb","ostensibly for the purpose of determining whether or not *** [his]denial of involvement was truthful". The plaintiff asserts that,pursuant to voice recording standards adopted by the American Boardof Recorded Evidence, a voice exemplar must be taken by trainedprofessionals in a controlled setting in order to be valid forcomparison purposes. We are not concerned with the question ofwhether the exemplar, if given, would have been valid. Rather, weneed only consider whether the plaintiff alleged that LaSalleordered him to give a voice exemplar for purposes of comparison. It is clear from the plaintiff's complaint that he allegedprecisely that.

LaSalle is correct in its assertion that the constitutionalprivilege against self-incrimination restricts only governmentconduct. See D.L. Cromwell Investments, Inc. v. NASD Regulation,Inc., 279 F.3d 155, 160-61 (2d Cir. 2002)(to establish violation ofdefendant's Fifth amendment right against self-incrimination,plaintiff must demonstrate that plaintiff's conduct constitutedstate action); United States v. D.F., 115 F3d 413, 420 (7^th Cir.1997)(any interrogation subject to strictures of Fifth amendmentmust be at hands of government actor); Nuzzo v. Northwest Airlines,Inc., 887 F. Supp. 28, 32 (D. Mass. 1995). As LaSalle's conduct didnot constitute state action, the trial court properly dismissedcount I of the plaintiff's complaint, in which he alleged that hehad been discharged in retaliation for invoking his constitutionalright against self-incrimination.

Even if the constitutional protection against self-incrimination could be said to apply to LaSalle's conduct, theplaintiff failed to state a cause of action for retaliatorydischarge. The United States Supreme Court has held that theprivilege against self-incrimination guaranteed by the Fifthamendment to the United States Constitution protects an accusedonly from being compelled to testify against himself or otherwiseprovide the State with evidence of a testimonial or communicativenature. Schmerber v. California, 384 U.S. 757, 761, 16 L. Ed. 2d908, 86 S. Ct. 1826 (1966). However, the privilege offers noprotection against one being compelled to speak for identificationpurposes. Schmerber, 384 U.S. at 764. Simply put, compelledproduction of a voice exemplar for identification or comparisonpurposes does not violate the Fifth amendment. United States v.Dionisio, 410 U.S. 1, 5-8, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973);United States v. Wade, 388 U.S. 218, 222-23, 18 L. Ed. 2d 1149, 87S. Ct. 1926 (1967); see also People v. Davis, 151 Ill. App. 3d 435,502 N.E.2d 780 (1986).

Although not bound to interpret provisions in the IllinoisConstitution in "lockstep" with the Supreme Court's interpretationof Federal constitutional counterparts, the provisions of our stateconstitution will generally not be interpreted as providing broaderprotection than the Federal constitution unless the language of ourconstitution or the debates and committee reports of theconstitutional convention indicate an intention to do so. Peoplev. Mitchell, 165 Ill. 2d 211, 217, 650 N.E.2d 1014 (1995). Thereis no evidence in either the language of article I, section 10 ofthe Illinois Constitution or the record of the proceedings of theconstitutional convention which indicates that the draftersintended that the Illinois privilege against self-incrimination beconstrued differently than the Supreme Court has interpreted thesame privilege contained in the Fifth amendment to the Federalconstitution. See Relsolelo v. Fisk, 198 Ill. 2d 142, 150, 760N.E.2d 963 (2001); People ex rel. Hanrahan v. Power, 54 Ill. 2d154, 295 N.E.2d 472 (1973).

The fact that the plaintiff has cited his "rights against selfincrimination as protected by the Illinois and United StatesConstitutions" as the public policy violated by his discharge doesnot of itself give rise to a claim for retaliatory discharge. "Thetest for determining if the complaint states a valid cause ofaction is whether the public policy clearly mandated by the citedprovisions is violated by the plaintiff's discharge." Barr v.Kelso-Burnett Co., 106 Ill. 2d 520, 527, 478 N.E.2d 1354 (1985). Since being compelled to give a voice exemplar does not violate theprivilege against self-incrimination guaranteed by the Fifthamendment to the United States Constitution or article I, section10 of the Illinois Constitution, LaSalle's discharge of theplaintiff for refusing to give such an exemplar does not violatethe public policy embodied in either constitutional provision.

Citing to Rodgers v. Peoples Gas, Light & Coke Co., 315 Ill.App. 3d 340, 733 N.E.2d 835 (2000), the plaintiff also argues thathis discharge violates public policy in another manner. InRodgers, the court held that the discharge of an employee who isinduced by his employer to participate in a criminal scheme devisedfor the purpose of providing grounds for the employee's terminationviolates public policy. Again arguing that the conditions underwhich LaSalle ordered him to provide a voice exemplar do not meetthe above-referenced voice comparison standards, the plaintiffasserts that the statement could have been used to implicate himrather than simply as a comparison. It is true that the plaintiffalleged that he was not provided with any "security or assurancesthat any voice recording he would make could not be used by anyoneclaiming it was the original message left for Mr. Newcomb." Theinstant case is distinguishable from Rodgers, though, in that theplaintiff here made no allegation that LaSalle's agents were actingin furtherance of any scheme to induce him to commit a crime tojustify his termination.

For the foregoing reasons, we conclude that count I of theplaintiff's complaint does not allege facts supporting a conclusionor inference that his discharge violated any clear mandate ofpublic policy. As a consequence, we find that count I fails tostate a cause of action for retaliatory discharge and was,therefore, properly dismissed by the trial court.

The plaintiff also challenges the trial court's dismissal ofhis action for civil conspiracy set forth in count II of hiscomplaint. He argues that the trial court improperly found thatBurke was LaSalle's agent and, based upon that finding, dismissedhis civil conspiracy claim, holding that a principal cannotconspire with its agent. See Buckner v. Atlantic Plant Maintenance, 182 Ill. 2d 12, 24, 694 N.E.2d 565 (1998). The plaintiffalso argues that, since he alleged that he was fired by reason ofhis race, the trial court erred in dismissing his civil conspiracycount on the basis of its finding that he had failed to state aclaim for retaliatory discharge.

To state a claim for civil conspiracy, a plaintiff must pleadthat two or more persons intentionally combined for the agreedpurpose of accomplishing by concerted action either an unlawfulpurpose or a lawful purpose by unlawful means. Buckner, 182 Ill. 2dat 23. However, the basis of a claim of civil conspiracy that mayresult in tort liability is not the mere combination of two or morepersons, but the wrongful act alleged to have been done pursuant tothe agreement. Rodgers, 315 Ill. App. 3d at 350.

Liberally construed, the plaintiff's civil conspiracy claimalleges that he was discharged both because he refused to give avoice exemplar and because of his race. As discussed above,however, the plaintiff's discharge for failing to give a voiceexemplar cannot support a claim for retaliatory discharge and doesnot, therefore, constitute any wrongful act which can support aclaim of civil conspiracy. See Davis v. Times Mirror Magazines,Inc., 297 Ill. App. 3d 488, 499, 697 N.E.2d 380 (1998). We areleft then with the issue of whether the plaintiff's allegation thatLaSalle conspired to, and did, terminate his employment "because hewas Black" can support a common law action for civil conspiracy.

The Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq.(West 1996)) is a comprehensive scheme of remedies andadministrative procedures for redress of civil rights violations. Mein v. Masonite Corporation, 109 Ill. 2d 1, 7, 485 N.E.2d 312(1985). Section 2-102(A) of the Act provides that it is a civilrights violation for any employer to discharge an employee on thebasis of "unlawful discrimination." (775 ILCS 5/2-102(A) (West1996)). The Act defines "unlawful discrimination" as discrimination against a person because of, inter alia, his race, color ornational origin. 775 ILCS 5/1-103(Q) (West 1996).

Section 8-111(C) of the Act states that: "Except as otherwiseprovided by law, no court of this state shall have jurisdictionover the subject of an alleged civil rights violation other than asset forth in this Act." 775 ILCS 5/8-111(C) (West 2000). Oursupreme court has repeatedly held that the Act provides theexclusive source of redress for alleged civil rights violations,including employment discrimination claims. Castaneda v. IllinoisHuman Rights Comm'n, 132 Ill. 2d 304, 322-23, 547 N.E.2d 437(1989); Mein, 109 Ill. 2d at 7. If a common law action is inessence one which seeks redress for a "civil rights violation" asdefined in the Act, the circuit court lacks subject-matterjurisdiction to adjudicate the claim. Maksimovic v. Tsogalis, 177Ill. 2d 511, 516, 687 N.E.2d 21 (1997). An absence of subject-matter jurisdiction cannot be waived by the parties, and may beraised at any time (Geise v. Phoenix Company of Chicago, Inc., 159Ill. 2d 507, 515, 639 N.E.2d 1273 (1994)), even sua sponte by areviewing court (People v. Capitol News, Inc., 137 Ill. 2d 162,170, 560 N.E.2d 303 (1990)).

There can be no disputing the fact that the plaintiff'sassertion that LaSalle, his employer, conspired to, and did,terminate his employment "because he was Black" alleges a civilrights violation within the meaning of the Act. As a consequence,no basis independent of the Act exists for imposing liability uponLaSalle predicated upon this charge, and the circuit court lackedjurisdiction to consider the claim. Geise, 159 Ill. 2d at 516-17.

Our analysis of this issue renders it unnecessary that weaddress the plaintiff's contention that the trial court improperlydismissed his civil conspiracy claim on the basis that Burke wasLaSalle's agent. For the foregoing reasons, we conclude that countII of the plaintiff's complaint fails to state a cause of actionfor conspiracy predicated either upon a retaliatory discharge or a"civil rights violation." See Geise, 159 Ill. 2d 515-19; Mein, 109Ill. 2d at 7. The circuit court's dismissal of count II is,therefore, affirmed.

As a final issue, we address the propriety of the trialcourt's dismissal of count III of the plaintiff's complaint, hisaction for negligent spoliation of evidence. In order to properlystate an action for negligence based upon spoliation of evidence,a plaintiff must plead facts, which if true, would establish a dutyowed by the defendant to the plaintiff, a breach of that duty, aninjury proximately caused by the breach, and damages. Boyd v.Travelers Insurance Co., 166 Ill. 2d 188, 194-95, 652 N.E.2d 267(1995). In this case, the trial court held that the plaintiff hadnot, and could not, satisfy the causation element of the claim and,therefore, dismissed the cause of action. We agree.

In order to satisfy the causation element of an action fornegligent spoliation of evidence, a plaintiff must allege "sufficient facts to support a claim that the loss or destruction ofthe evidence caused the plaintiff to be unable to prove anunderlying lawsuit." Boyd, 166 Ill. 2d at 196. As the Boyd courtexplained:

"A plaintiff need not show that, but for the loss ordestruction of the evidence, the plaintiff would haveprevailed in the underlying action. This would be toodifficult a burden, as it may be impossible to know what themissing evidence would have shown.

A plaintiff must demonstrate, however, that but for thedefendant's loss or destruction of the evidence, the plaintiffhad a reasonable probability of succeeding in the underlyingsuit. In other words, if the plaintiff could not prevail inthe underlying action even with the lost or destroyedevidence, then the defendant's conduct is not the cause of theloss of the lawsuit. This requirement prevents a plaintifffrom recovering where it can be shown that the underlyingaction was meritless." Boyd, 16 Ill. 2d at 196-97, n. 2.

In count III of his complaint, the plaintiff incorporated allof the allegations contained in counts I and II, his retaliatorydischarge and conspiracy claims, respectively. He asserts thatLaSalle's loss or destruction of certain evidence "will make itmore difficult for him to succeed in his litigation." However, theplaintiff fails to identify any alleged causes of action he has ormight have had against LaSalle other than those alleged in countsI and II of his complaint. Having found, for reasons other thanthe absence of evidence, that the plaintiff could not prevail on aclaim of retaliatory discharge or civil conspiracy, we concludethat he has not met his burden to plead facts which satisfy thecausation element of an action for negligent spoliation ofevidence. As a consequence, we also affirm the trial court'sdismissal of count III of the plaintiff's complaint.

Based on the foregoing analysis, the judgment of the circuitcourt granting LaSalle's motion to dismiss the plaintiff'scomplaint and each of the three counts pled therein is affirmed.

Affirmed.

WOLFSON and HALL, JJ., concur.