Brackett v. Galesburg Clinic Ass'n

No. 3--97--0122
Consolidated with 3--97--0160
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1997

L. JUNE BRACKETT, ) Appeal from the Circuit Court
) for the 9th Judicial Circuit
Plaintiff-Appellant, ) Knox County, Illinois
)
v. )
)
THE GALESBURG CLINIC ASSOCIATION, )
a professional association, )
MARK A. MEEKER, D.O., STEVEN M. )
HOEKSTRA, M.D., and HARVEY J. )
PENZINER, M.D., ) No. 96--L--34
)
Defendants-Appellees, )
)
and )
)
LYNN L. GREELEY, M.D., and )
THOMAS H. PATTERSON, M.D., ) Honorable
) Ronald C. Tenold
Respondents in Discovery. ) Judge, Presiding

______________________________________________________________________

PRESIDING JUSTICE LYTTON delivered the opinion of the court:
___________________________________________________________________

Following her dismissal as an employee of the Galesburg Clinic
Association, plaintiff L. June Bracket filed suit against the
clinic and three members of the clinic's executive board.
Plaintiff's amended complaint alleged intentional infliction of
emotional distress, negligent infliction of emotional distress,
conspiracy, and breach of contract. Defendants filed motions to
dismiss all of the counts pursuant to sections 2--615 and 2--619 of
the Illinois Code of Civil Procedure. (735 ILCS 5/2--615, 2--619
(West 1996). The trial judge granted the motions to dismiss, and
plaintiff filed this appeal.[fn1] We affirm.
In deciding a motion filed pursuant to section 2--615 of
Illinois Code of Civil Procedure, the merits of the case are not at
issue. 735 ILCS 5/2--615 (West 1996); McCormick v. Kruk, 220 Ill.
App. 3d 449, 451, 581 N.E.2d 73, 75 (1991). Only the pleadings
are considered (Shugan v. Colonial View Manor, 107 Ill. App. 3d
458, 460, 437 N.E.2d 731, 733 (1982)) and all well-pleaded facts in
the complaint are deemed to be true and all inferences arising from
the complaint are to be drawn in favor of the nonmovant (Meerbrey
v. Marshall Field & Co., 139 Ill. 2d 455, 473, 564 N.E.2d 1222,
1230 (1990)). A motion to dismiss, however, does not admit
conclusions of law or fact which are unsupported by allegations of
specific facts warranting such conclusions. Groenings v. City of
St. Charles, 215 Ill. App. 3d 295, 299, 574 N.E.2d 1316, 1319
(1991). On appeal from a order dismissing a complaint pursuant to
section 2--615, the issue is whether the complaint sufficiently
states a cause of action. McCormick, 220 Ill. App. 3d at 451, 581 N.E.2d at 75.
A motion filed pursuant to section 2--619 of the Code should
be granted only when it raises an affirmative matter which negates
the plaintiff's cause of action completely or which refutes crucial
conclusions of law or material fact that are unsupported by
specific facts alleged in the plaintiff's complaint. 735 ILCS 5/2-
-615 (West 1996); Egidi v. Town of Libertyville, 181 Ill. App. 3d
542, 546, 537 N.E.2d 369, 372 (1989). When proceeding under
section 2--619, a movant concedes all well-pleaded facts contained
in the complaint but does not admit conclusions of law or
conclusions of material fact unsupported by allegations of material
fact. Magnuson v. Schaider, 183 Ill. App. 3d 344, 352, 538 N.E.2d 1309, 1315 (1989). In reviewing the trial court's dismissal of a
complaint pursuant to section 2--619, the function of the appellate
court is limited to a consideration of the legal questions
presented by the pleadings. Miranda v. Jewel Companies, Inc., 192
Ill. App. 3d 586, 588, 548 N.E.2d 1348, 1350 (1989). The reviewing
court may affirm a dismissal on any ground supported by the record.
Woodson v. North Chicago Community School District No. 64, 187 Ill.
App. 3d 168, 172, 543 N.E.2d 290, 292 (1989).
Plaintiff's complaint alleges that: plaintiff was an employee
at the defendant clinic for a period of 44 years; the defendant
doctors conducted an executive board meeting at a time and in a
manner other than that prescribed by the clinic's articles of
association; defendant doctors signed a letter terminating
defendant's employment with the clinic; a copy of the letter was
given to plaintiff and she was summarily escorted from the premises
without being given the opportunity to go through her drawers or
pack her personal belongings; some but not all of plaintiff's
personal belongings were later delivered by other clinic employees;
defendant Meeker sent an memo to the clinic's associate doctors
advising them that it would be "ill-advised" to discuss the matter
outside the clinic; Meeker issued a one-sentence statement,
subsequently included in a local newspaper article, saying that
plaintiff was no longer employed as the clinic's chief executive
officer; Meeker addressed the clinic's supervisory employees and
stated that plaintiff's termination would not be discussed with
anyone; Meeker hinted by innuendo to the supervisory employees that
the reason for the termination was something "really bad"; and
plaintiff has never been given a reason for her termination.
I.
In McGrath v. Fahey, 126 Ill. 2d 78, 533 N.E.2d 806 (1988),
the supreme court outlined the elements for the tort of intentional
infliction of emotional distress:
"First, the conduct involved must be truly extreme and
outrageous. Second, the actor must either intend that
his conduct inflict severe emotional distress, or know
that there is at least a high probability that his
conduct will cause severe emotional distress. Third, the
conduct must in fact cause severe emotional distress."
McGrath, 126 Ill. 2d at 86, 533 N.E.2d at 809.
The McGrath court cited with approval the admonition found in the
Restatement (Second) of Torts  46, comment j, at 77-78 (1965):
"The law intervenes only where the distress inflicted is
so severe that no reasonable man could be expected to
endure it. The intensity and duration of the distress
are factors to be considered in determining its
severity." McGrath, 126 Ill. 2d at 86, 533 N.E.2d at
809.
Thus, the tort does not arise from threats, insults, indignities,
annoyances, or petty oppressions, but coercion, abuse of power or
authority, and harassment. McGrath, 126 Ill. 2d at 86-89, 533 N.E.2d at 809-11. The conduct must go beyond all bounds of decency
and be considered intolerable in a civilized community. Kolegas v.
Heftel Broadcasting Corp., 154 Ill. 2d 1, 21, 607 N.E.2d 201, 211
(1992).
Applying these standards, we conclude that although plaintiff
was certainly subjected to hurt feelings and a certain amount of
indignity, none of defendants' alleged actions constituted conduct
that was outrageous or beyond the bounds of decency. Cf. Kolegas,
154 Ill. 2d 1, 607 N.E.2d 201 (radio hosts said caller's efforts to
raise money for charity was a "scam" and that his wife and child
who suffered from Elephant Man's disease had abnormally large
heads); Milton v. Illinois Bell Telephone Co., 101 Ill. App. 3d 75,
427 N.E.2d 829 (1981) (plaintiff alleged that he was fired for
failing to participate in criminal activity). Defendants' conduct
in terminating plaintiff is more akin to that of offensive
creditors exercising and enforcing their legal collection rights.
See Public Finance Corp. v. Davis, 6 Ill. 2d 85, 360 N.E.2d 765
(1977).
Moreover, we find that plaintiff has failed to allege facts
supporting her conclusory allegation that defendants intended to
inflict severe emotional distress or that there existed a high
probability that their conduct would cause severe emotional
distress. The trial court properly dismissed the counts alleging
intentional infliction of emotional distress.
II.
In Corgan v. Muehling, 143 Ill. 2d 296, 574 N.E.2d 602 (1991),
the supreme court discussed the pleading requirements for negligent
infliction of emotional distress:
"A complaint for negligence, to be legally sufficient,
must set out facts that establish the existence of a duty
owed by the defendant to the plaintiff, a breach of that
duty, and an injury proximately caused by that breach.
[Citations.] The determination of whether a duty exists
-- whether the defendant and the plaintiff stood in such
a relationship to one another that the law imposed upon
the defendant an obligation of reasonable conduct for the
benefit of the plaintiff -- is an issue of law to be
determined by the court." Corgan, 143 Ill. 2d at 306,
574 N.E.2d at 606.
In determining whether to impose a duty upon a defendant, a court
looks at various policy considerations, such as the likelihood of
harm, the gravity of the injury, the burden of guarding against the
injury, and the relationship between the parties. Corgan, 143 Ill. 2d at 306, 574 N.E.2d at 606.
To state a cause of action for the tort of negligent
infliction of emotional distress, a plaintiff must allege that the
infliction of emotional distress arose out of the negligent acts of
a defendant. State Farm Fire & Casualty Co. v. Watters, 268 Ill.
App. 3d 501, 510, 644 N.E.2d 492, 498 (1994). Where the purported
emotional distress has been caused by intentional acts committed by
a defendant, the plaintiff does not state a cause of action for
negligent infliction of emotional distress. Watters, 268 Ill. App.
3d at 510, 644 N.E.2d at 498. In this case, none of the alleged
actions committed by the defendants were negligent. Rather, as
plaintiff properly characterized them in her counts for intentional
infliction of emotional distress, each of the defendants' actions
were knowingly and intentionally committed.
Moreover, even if were to find that some of defendant's
actions were unintentional, plaintiff has failed to properly allege
the existence of a legal duty that was breached by defendants.
Plaintiff claims that defendants violated the duty of employers to
treat their employees with "good faith and fair dealing."
Plaintiff expressly states in her brief that she is not seeking the
recognition of a new duty. However, the authority cited by
plaintiff, including 810 ILCS 5/1-203 (West 1996), Hentze v.
Unverfehrt, 237 Ill. App. 3d 606, 604 N.E.2d 536 (1992), Osten v.
Shah, 104 Ill. App. 3d 784, 433 N.E.2d 294 (1982), and Foster
Enterprises, Inc. v. Germania Federal Savings and Loan Assn., 97
Ill. App. 3d 22. 421 N.E.2d 1375 (1981), pertain to contractual
situations. Yet, as plaintiff concedes in her brief, her cause of
action for negligent infliction of emotional distress relies on
tort law and "does not sound in breach of contract."
Plaintiff has failed to cite a single case where a duty of
"good faith and fair dealing" toward employees has been found to
exist apart from principles of contract law. We affirm the
dismissal of plaintiff's claims for negligent infliction of
emotional distress.
III.
Civil conspiracy consists of a combination of two or more
persons for the purpose of accomplishing by some concerted action
either an unlawful purpose or a lawful purpose by unlawful means.
Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62, 645 N.E.2d 888, 894
(1994); Buckner v. O'Brien, 287 Ill. App. 3d 173, 180, 677 N.E.2d 1363, 1368 (1997). To state a cause of action for conspiracy, a
plaintiff must allege not only that one of the conspirators
committed an overt act in furtherance of the conspiracy, but also
that such act was tortious or unlawful in character. Adcock, 164 Ill. 2d at 63, 645 N.E.2d at 894. While plaintiff has alleged that
defendants acted in concert, we have already found that she has
failed to adequately allege that these acts were tortious or
unlawful. Plaintiff's claim for conspiracy was properly dismissed.
The judgment of the circuit court of Knox County is affirmed.
Affirmed.

HOLDRIDGE and MICHELA, JJ., concur.

[fn1]On appeal, plaintiff alleges that the trial court erred
in dismissing the emotional distress and conspiracy counts. No
issue is raised regarding the breach of contract claim.