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No . 1-08-1375

IN THEAPPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

SIXTH DIVISION

March 27, 2009

MAREK GOLASIEWICZ,

)

Appeal from theCircuit Court of

Plaintiff-Appellant,

)

Cook County .

V .

)

No . 06 L 1435

ANDRZEJ CHMIELECKI, INDIV . and )d/b/a ANDY'S EXPRESS COMPANY, INC ., )MARZENNA CHMIELECKI, and )919 JERICHO, LLC .,

)

HonorableDennis J . Burke,

Defendants-Appellees .

)

Judge Presiding .

O R D E R

Plaintiff Marek Golasiewicz appeals from the trial court'sf

order granting the motion of defendant Andy's Express Company,

Inc . (Andy's Express) to dismiss plaintiff's second amended

complaint pursuant to section 2-615 of the Code of Civil

Procedure (the Code) (735 ILCS 5/2-615 (West 2006)) . On appeal,

plaintiff asserts the trial court improperly dismissed his

complaint because he alleged facts necessary to state a cause of

action for retaliatory discharge and the motion to dismiss by

Andy's Express did not challenge plaintiff's claim alleging a

violation of the Uniform Fraudulent Transfer Act (740 ILCS 160/1

et seq . (West 2006) (UFTA)) .

Initially, we observe that on February 7, 2006, plaintiff

filed a claim with the Illinois Workers' Compensation commission

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(the Commission) based on certain facts that are common to the

case before us . In the triiaL .cart and now on appeal, various

statements have been made relying on testimony presented at the

arbitration proceedings in the separate action before the

Commission ; however, those matters are not before us on appeal .

Thus, we recite only those facts necessary to resolve the issues

in this case .

On February 8, 2006, plaintiff filed the present action in

the trial court against Andy's Express . Ultimately, on February

7, 2008, plaintiff filed a "verified second amended complaint at1

law" naming Andrzej Chmielecki individually (Andy), and doing

business as Andy's Express, Marzenna Chmielecki (Marzenna), and

919 Jericho, LLC . 1

In :Count 1, plaintiff raised a retaliatory discharge claim

for exercising his rights pursuant to the Workers' Compensation

Act (820 ILCS 305/4(h) (West 2004)) (Workers' Comp Act) . He

alleged that on October 29, 2005, he was employed by Andy as a

truck mechanic . On that day, plaintiff fell off of a tire at

work and severely injured his back, eventually becoming a

candidate for surgery . Plaintiff, who had limited English

speaking abilities and business sophistication, informed Andy of

'Defendant Andy's Express is represented on appeal by thesame attorney who represented the company in the trial court .Although defense counsel did not appear to represent the otherdefendants at trial, she now claims to be representing all of thedefendants on appeal .

2

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the injury at about 10 a .m . the same day . Plaintiff told Andy

:that-plaintiff needed to go home due to his pain . In a phone

conversation with Andy at 7 :50 a .m . on October 31, 2005,

plaintiff stated that due to his work-related injury and

outrageous pain, he was unable to come to work that day and was

going to the doctor . The same day, plaintiff saw a doctor, who

removed him from work until further notice . At 8 :15 a .m . the

next day, plaintiff called and informed Andy that due to the work

accident, a doctor had removed plaintiff from work . Plaintiff

called again/at 8 :17 a .m . and asked Andy if plaintiff would be

paid while off of work for the work-related accident . Andy

stated he would not pay plaintiff for his time off of work .

Plaintiff, alleged that Andy knew plaintiff was his employee and

Andy had failed to purchase insurance, apparently referring to

workers' compensation insurance, but Andy lied to plaintiff by

stating he was not Andy's employee, and thus, was not eligible

for payment . When plaintiff'asked Andy if he needed a doctor's

report, Andy responded, "what for?" Plaintiff did not give Andy

a doctor's note because plaintiff believed he would not accept

one . Plaintiff also alleged that Andy had constructive notice of

his obligations under the Workers' Comp Act and began a course of

conduct designed to interfere with plaintiff's exercise of his

rights under that Act . Andy misled plaintiff, overworked him for

someone with his medical condition, hoped plaintiff would be

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unable to fully perform his duty and hoped he would be less

likely, to learn of his rightswif facing economic-stress .

Plaintiff alleged that in the beginning of November 2005, he

was unable to keep up with work demands due to his injury and

received Andy's permission to have Krysztof Kordula come and

assist plaintiff at work . Kordula was also present in the

beginning of that month when plaintiff explained to Andy that his

work-related accident caused him to be unable to perform his

normal duties . Plaintiff continued working for the remainder of

November and through the middle of December 2005, when he was

informed ovek the telephone that his employment was terminated .

Plaintiff alleged that Andy knew plaintiff was not improving and

Andy's beet opportunity to avoid liability was to terminate him .

When plaintiff returned his work key in January 2006, he

discovered a new mechanic was working at Andy's Express .

Plaintiff argued that Illinois law did not require him to

demonstrate he was fired for actually filing a workers'

compensation claim ; rather, it was sufficient to demonstrate that

employment was terminated in retaliation for his activities and

to prevent him from exercising statutory rights . He argued that

here, Andy intended for plaintiff to leave his job so that Andy

would not be required to pay medical bills and other benefits

provided under the Workers' Comp Act . He also argued that

unscrupulous employers may intimidate employees to keep them from

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exercising their rights under the Act and an injured employee

- with poor job prospects or- •a family. to feed may succumb to his

employer's intimidation . In addition, he argued that Andy

breached his statutory duty to plaintiff under the Workers' Comp

Act by discharging plaintiff and causing him to incur damages,

including the right to pay, benefits and the opportunity for

advancement . He sought $50,000 and the recovery of fees and

costs incurred in his lawsuit .

In Count 2, plaintiff complained of a UFTA violation by all

the defendants . Plaintiff recounted certain facts alleged in the

first count ;' however, he specified that although his doctor

removed him from work through August 2007, he worked occasionally

in November and December 2005 despite his condition . Plaintiff

alleged that after his injury, Andy, doing business as Andy's

Express, became aware of his potential liability for a workers'

compensation claim .

Plaintiff alleged that Andy's Express operated on real

property owned by Andy and his wife Marzenna at 919 Jericho Road

in Aurora, Illinois . Plaintiff alleged that Andy and Marzenna

commingled said real property with the property of Andy's

Express, which never paid a fair market rent to them for use of

the property, and the three defendants failed to properly account

for their individual assets and liability regarding the ownership

of equipment used by Andy's Express, and property owned by Andy

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and Marzenna . Plaintiff asserted that due to the commingling

between said defendants;-wit was impossible to account-=for the

liabilities of Andy's Express, and thus, Andy and Marzenna were

personally responsible for its liability .

In addition, plaintiff alleged that on April 27, 2006, an

arbitrator awarded him a total of $16,028 .52 in back temporary

disability benefits, unpaid medical bills, penalties and attorney

fees . Plaintiff alleged that on some unspecified date, the

defendants filed a petition for review of the Arbitrator's

decision in order to delay collection on the award and allegedi

that as a result of the award, Andy and Marzenna formed the 919

Jericho LLC and the Marzenna Chmielecki Revocable Trust as

fraudulent shell entities in order to obfuscate their personal

assets . On November 20, 2006, Andy and Marzenna recorded with

the record of deeds the sale of the real property at 919 Jericho

Road for $0 to 919 Jericho LLC . They also sold their property at

771 Mather Lane in Batavia for $0 to the Marzenna Chmielecki

Revocable Trust . Plaintiff argued that the beneficial owners of

the LLC were Andy and Marzenna and the sale price of $0 for the

Jericho Road property was prima facie evidence of the fraudulent

nature of the transfer .

Plaintiff alleged that under the UFTA he was a creditor who

asserted a claim and defendants were debtors, insiders and

relatives . Plaintiff alleged the defendants possessed an asset

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and property under the UFTA in that they knew they had commingled

their--personal assets with the assets-and liabilities of Andy's

Express . In addition, plaintiff alleged that during the pendency

of his claim, the defendants transferred the real property

without receiving a reasonably equivalent value in exchange, and

reasonably believed they would incur debts beyond their ability

to pay as they became due under plaintiff's award . Plaintiff

alleged that after the defendants learned of plaintiff's claim,

the transfers occurred and they were fraudulent as provided for

under the UFTA . Plaintiff sought a determination that the

transfers were fraudulent, an order voiding the transfer of the

property, an injunction against further disposition of real

property,, and the appointment of a receiver to take charge of the

real property transferred and dispose of it . He also sought the

transfer of the claim to the presiding judge of the law division

for assignment within the chancery division .

In Count 3, plaintiff sought punitive damages for the

retaliatory discharge claim, alleging, in pertinent part, that

Andy fired him with intent and actual malice or alternatively,

the discharge was committed with such gross negligence as to

indicate a willful and wanton disregard of plaintiff's rights .

Plaintiff alleged he was entitled to punitive damages as a result

of Andy's actions .

On March 4, 2008, defendant Andy's Express, filed a motion

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to dismiss the complaint pursuant to section 2-615, arguing, in

pertinent part, that the complaint failed to -state •facts~`-

sufficient to sustain the cause of retaliatory discharge .

Specifically, Andy's Express argued that the issue of whether

plaintiff was an employee, whether he gave notice of an accident

and whether Andy's Express was obligated to provide plaintiff

with benefits had been litigated already and thus, certain items

in the complaint were not relevant to this cause of action .

Andy's Express also asserted that other items in the complaint

were conclusory, irrelevant, legal statements or misstatements of

law. In addition, Andy's Express argued that testimony before

the arbitrator in the separate cause before the commission

negated certain items and the trial court had the advantage of

having the official transcript of plaintiff's own account of the

events leading to his discharge, which showed he could not allege

facts sufficient to state a cause of action .

In his response filed on March 7, 2008, plaintiff argued that

contrary to Andy's testimony before the Commission, it was now

admitted that plaintiff was the employee of Andy's Express and by

virtue of two telephone calls, plaintiff put Andy on notice that

he sought or was going to seek benefits under the Workers' Comp

Act . Plaintiff argued that Illinois law allowed retaliatory

discharge claims to be based on an interference with the exercise

of any right under that act . Plaintiff also referred to

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testimony from the arbitration proceeding .

Andy's Express filed a reply on April 101 2006, again

referring to evidence adduced in the separate action before the

Commission . Andy's Express argued that plaintiff's response

contained untrue, conclusory and irrelevant statements, and

plaintiff could not allege facts showing he was discharged in

retaliation .

On May 2, 2008, the trial court held oral arguments

regarding the motion to dismiss the complaint ; however, the

transcript is not included in our record on appeal .

On May 1 5, 2008, the court dismissed with prejudice the

retaliatory discharge count, finding that the complaint was4

devoid of factual allegations that defendant Andy's Express was

informed or otherwise found out that plaintiff intended to pursue

relief under the Workers' Comp Act . The court then stated, "[a]s

a result of Count I being dismissed with prejudice, Counts II and

III necessarily are, dismissed with prejudice ."

In his emergency motion to reconsider filed on May 6, 2008,

plaintiff argued that fraudulent transfer was a separate cause of

action and the court should not have dismissed with prejudice

Counts 2 and 3 . Plaintiff argued that the defendant did not file

a responsive pleading to those counts and the court did not

specifically find those counts failed to state causes of action .

The trial court ordered the dismissal order to stand on May

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9, 2008 .

On appeal, plaintiff first-- as'sezts -the" trial-

--court-improperly dismissed his complaint because he stated a claim for

retaliatory discharge by alleging that he was discharged after he

informed his employer Andy's Express of his intent to exercise

his rights under the Workers' Comp Act by seeking medical

treatment and by his subsequent injury and compensation-related

discussions with Andy .

An order granting a section 2-615 motion to dismiss is

subject to de novo review . Brewster v . Rush-Presbyterian-St .iiLuke's Medical Center, 361 Ill . App . 3d 32, 35 (2005) . This is

because ruling on a motion to dismiss does not require the trial

court to assess credibility or weigh facts . Vernon v . Schuster,

179 Ill . 2d 338, 343 (1997) . This court may affirm the trial

court's judgment on any grounds found in the record . Seith v .

Chicaqo Sun-Times, Inc ., 371 Ill . App . 3d 124, 133 (2007) .

A section 2-615 motion t dismiss challenges a complaint's

legal sufficiency by alleging defects on its face . City of

Chicaqo v . Beretta U .S .A . Corp ., 213 Ill . 2d 351, 364 (2004) .

Under our fact-pleading standard, the plaintiff must allege

sufficient facts to support a legally recognized cause of action .

Beretta U .S .A . Corp ., 213 Ill . 2d at 368 . Absent the necessary

allegations, that requirement is not satisfied by the general

policy favoring liberal construction of the pleadings . Beretta

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U .S .A . Corp ., 213 Ill . 2d at 368 . In considering a motion to

dismiss, the court must disregard the pleaded conclusions and -

look only to well-pleaded facts . Beretta U .S .A . Corp ., 213 Iii .

2d at 368 . In reviewing the sufficiency of the complaint, the

court accepts all well-pleaded facts and all reasonable

inferences which may be drawn therefrom as true, and construes

the complaint s allegations in

plaintiff . Beacham v . Walker, 231 Ill . 2d 51, 57-58 (2008) .

Only the four corners of the complaint and the documents appended

to it are to/be considered (Seith, 371 Ill . App . 3d at 133), and

a plaintiff' is not required to set forth the evidence in his

complaint (Marshall v . Burqer Kinq Corp ., 222 Ill . 2d 422, 429-30:z(2006)) . ; A cause of action should not be dismissed pursuant to

section 2-615 unless it is apparent that no set of facts can be

proven entitling the plaintiff to recovery . Marshall, 222 Ill .

2d at 429 .

An injured plaintiff states a valid claim for retaliatory

discharge by alleging that (1) he was the defendant's employee

before the injury ; (2) he exercised rights granted by the

Workers' Comp Act ; and (3) his discharge was causally related to

the filing of his claim or the exercise of his right under the

Act . Clemons v . Mechanical Devices Co ., 184 Ill . 2d 328, 335-36

(2000) .

the light most favorable to the

(1998) ; Paz v . Commonwealth Edison, 314 Ill . App . 3d 591, 594

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First, plaintiff specifically alleged that he was an

employee of Andy when he sustained his-injury .- .'Andy does not

dispute that plaintiff worked for him and does not argue on

appeal that plaintiff was not an employee . Defendant Andy's

Express addresses this element by stating in its motion to

dismiss that "whether or not the Plaintiff was an employee ***

[has] already been litigated and [is] not relevant to this

cause ." Contrary to defendants' contention, plaintiff's status

as an employee is not only relevant but also essential to allege

a retaliatory discharge claim . We find the first element of a

retaliatory discharge cause of action has been sufficiently

alleged, : in the second amended complaint .

The second and third elements are at issue because here,

plaintiff actually filed a worker's compensation claim in

February 2006 after Andy had discharged him in January 2006 .

However, a retaliatory discharge claim is founded on the

employer's interference with an employee's intent to exercise his

right under the Worker's Comp Act, which provides as follows :

"It shall be unlawful for any employer

*** to interfere with, restrain or coerce an

employee in any manner whatsoever in the

exercise of the rights or remedies granted to

him or her by this Act *** because of his or

her exercise of the rights or remedies

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granted to him or her by this Act . It shall

'be unlawful for any employer *** to discharge

*** an employee because of the exercise of

his or her rights or remedies granted to him

or her by this Act ." 820 ILCS 305/4(h) (West

2004))

This section plainly prohibits an employer's retaliatory

discharge of an employee due to his exercise of workers'

compensation rights . Smithv.Waukegan Park District, 231 Ill .

2d ill, 119 1(2008)

Retaliatory discharge actions are allowed where an employee

is discharged in anticipation of his filing a claim under the

Workers' ,Comp Act . Jacobson v . Knepper & Moga, P .C ., 185 Ill . 2d

372, 376 (1998) . Thus, it is unnecessary for a plaintiff to have

actually filed his workers' compensation claim while still

employed . Richardson v . Illinois Bell Telephone Co ., 156 Ill .

App . 3d 1006, 1010 (1987) . Requesting and seeking medical

attention is the crucial first step in exercising rights under

the Workers' Comp Act and has the same effect as filing a formal

compensation claim . Hinthorn v . Roland's of Bloominqton, Inc .,

119 Ill . 2d 526, 534 (1988) . Both are assertions to legal rights

to medical care for work injuries . Hinthorn, 119 Ill . 2d at 534 .

This court has also held a cause of action to be sufficiently

pled even in the absence of allegations that the employer was

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specifically informed of the employer's intent to file a claim,

where a court could reasonably--infer that the- employer recognized

the employee could file a valid worker's compensation claim and

sought to prevent that possibility . Wolcowicz v . Intercraft

Industries Corp ., 133 Iii . App . 3d 157, 159, 160-61 (1985) . In

addition, a cause of action is not precluded due to mere delay in

filing a claim. See Wolcowicz, 133 Ill . App . 3d at 162 . it

would be anomalous to allow a cause of action to employees fired

after filing a workers' compensation claim, but not to employees

who are injured and fired before having the chance to file such ai

claim . Hinthorn, 119 Ill . 2d at 534 .

Here, the complaint's well-pleaded facts and reasonable

inferences which may be drawn therefrom satisfy the pleading

requirements for the second and third elements . Although

plaintiff did not allege that he directly asked Andy to pay for

his medical expenses, plaintiff's allegations indicate that Andy

clearly knew plaintiff had sought medical treatment for his

injury and was offering to obtain a doctor's note if necessary .

Plaintiff also sought compensation from Andy for time away from

work due to the injury . Thus, a reasonable inference from those

facts indicate that Andy recognized plaintiff was attempting to

exercise his rights under the Workers' Comp Act and eventually

terminated plaintiff to prevent him from filing a valid

compensation claim when his condition worsened . See Wolcowicz,

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133 Ill . App . 3d at 160 . In addition, it was unnecessary for

plaintiff to allege that he filed a - compensation -claim while'

still employed .

Although defendant relies on testimony from the

aforementioned Commission proceeding and the absence of evidence

supporting plaintiff's claims, we reiterate that the testimony

from the separate proceedings before the Commission is not

properly before us ; rather, we are confined to the four corners

of the second amended complaint which plaintiff filed in the

trial court ,and plaintiff was not required to set forth evidence

in his complaint . Contrary to defendant's representations on

appeal, there is no evidence refuting plaintiff's claim because

at this pleading stage, there is no evidence .

In determining that plaintiff alleged facts sufficient to

state a cause of action, we observe that both parties rely on the

decision in Roger v . Yellow Freight Systems, Inc ., 21 F . 3d 146

(1994) . However, that case 'does not warrant a different

conclusion here primarily because Yellow Freight was decided

after the entry of summary judgment in favor of the employer .

Yellow Freight, 21 F . 3d at 147, 148 . Unlike the present case,

which involved a decision on the complaint only, a summary

judgment decision is made after evidence or discovery is

included . Moreover, Yellow Freight recognized that a viable

cause of action for retaliatory discharge does not require the

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actual filing of a workers' compensation claim . Yellow Freight,

21 F . 3d at 150 ; see' also -Sweat v.-Peabody Coal, Co

94 F . 3d

301, 305 (1996) . Notably, in its order, the trial court found

Andy's motion for summary judgment was rendered moot by its

decision to dismiss plaintiff's complaint with prejudice .

Accordingly, we cannot speculate as to the outcome of such

proceedings here .

Having determined that the trial court improperly dismissed

Count 1 of the complaint because it alleged sufficient facts to

establish a claim of retaliatory discharge, we also find that the

trial court improperly dismissed Count 3 because punitive damages

are allowed for such a claim . Bajalo v . Northwestern University,I

369 Ill . App . 3d 576, 580 (2006) ; Hollowell v . Wilder Corp.. of

Delaware, 318 Ill . App . 3d 984, 988 (2001) .

.Next, plaintiff asserts that the trial court improperly

dismissed his claim under the UFTA because the defendants never

filed any motion challenging that claim, which stood

independently from his retaliatory discharge claim .

Here, the section 2-615 motion filed by Andy's Express was

not directed at the UFTA count . Rather, the trial court found

that the retaliatory discharge count served as the foundation for

the UFTA count and, thus, the UFTA must necessarily be dismissed

with prejudice also . Notably, the UFTA - count in the second

amended complaint appears to be premised on an arbitrator's award

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entered on April 27, 2006, not on the retaliatory discharge

count . In addition, a plaintiff may file a complaint allegi'hg ,' -

only a violation of a claim under the UFTA . See A.P . Properties,

Inc . v . Goshinsky_, 186 Ill . 2d 524, 527 (1999) . Nevertheless,

applying the same reasoning employed by the trial court, our

finding that the retaliatory discharge claim should not be

dismissed with prejudice pursuant to section 2-615, we also find

that the UFTA count should remain . This result is particularly

appropriate here because neither party on appeal provides a well-

reasoned argument or cites legal authority for a positioni

premised on section 2-615 .

FQ17 all the foregoing reasons, we reverse the dismissal with

prejudice'of plaintiff's second amended complaint and remand for

further proceedings .

Reversed and remanded .

JOSEPH GORDON, J ., with O'MALLEY, P .J ., and CAHILL, J ., concurring .

11

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