                                                                        THIRD DIVISION
                                                                            May 3, 2006




No. 1-05-2342




SANDY A. KRUM,                                            )    Appeal from the
                                                          )    Circuit Court of
                    Plaintiff-Appellant,                  )    Cook County
                                                          )
v.                                                        )
                                                          )    No. 04 L 014266
CHICAGO NATIONAL LEAGUE BALL CLUB, INC.,                  )
d/b/a THE CHICAGO CUBS,                                   )
                                                          )    Honorable
                    Defendant-Appellee.                   ))   Stuart A. Nudelman,
                                                          )    Judge Presiding.




      JUSTICE KARNEZIS delivered the opinion of the court:

      Plaintiff Sandy Krum (Krum) appeals from an order of the circuit court granting

defendant Chicago National League Ball Club, Inc.=s (the Cubs) motion to dismiss

pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS

5/2-615 and 5/2-619 (West 2004)). On appeal, Krum contends that the circuit court

erred in dismissing his retaliatory discharge claim and in denying his motion for leave to
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file an amended complaint. We affirm.

                                      BACKGROUND

       Krum filed the instant lawsuit as a result of the Cubs= decision not to renew his

one-year employment contract. Krum alleged the following relevant facts in his

complaint. Krum was the assistant athletic trainer for the Cubs from 2001 until 2004.

Krum was licensed as required by the Illinois Athletic Trainers Practice Act (225 ILCS

5/4 (West 2004)). The Cubs= head athletic trainer, however, did not have a license.

After discovering this fact, Krum met with the Cubs= general manager on August 16,

2004. During their three and-a-half hour meeting, Krum informed the general manager

of numerous improper events that had occurred during the course of the athletic

trainers' duties, including the head athletic trainer=s failure to have a license pursuant to

the Athletic Trainers Practice Act.

       In early October 2004, during one of the last games of the season, a member of

the Cubs= board of directors approached Krum in the dugout and told Krum, Awe are

sorry for putting you through this and we will handle it next week.@ On or about October

13, 2004, the Cubs Aterminated@ Krum. The Cubs continued to pay Krum's salary

pursuant to his employment contract until December 17, 2004, when the contract

expired. According to Krum, the Cubs terminated him in retaliation for Krum informing

the general manager that "the head athletic trainer, the person responsible for making

certain that the athletes of the Cubs were able to perform to the best of their ability and

to quickly and adequately rehabilitate themselves from any injury, was not licensed to


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1-05-2342


so act in the State of Illinois.@ Krum also alleged that he performed his duties

satisfactorily and was never disciplined or reprimanded or told of any deficiencies in his

work. Krum further alleged that, but for his disclosure that the head athletic trainer was

unlicensed, the Cubs would have retained Krum as an employee.

       The Cubs filed a motion to dismiss Krum's complaint pursuant to sections 2-615

and 2-619 of the Code, which was supported with an affidavit from the Cubs' general

manager as well as a copy of Krum's employment contract. The circuit court granted

the motion pursuant to section 2-615 and Krum now appeals.

                                         ANALYSIS

       We review motions to dismiss de novo. Owens v. McDermott, Will & Emory, 316

Ill. App. 3d 340, 344 (2000). We assume as true all facts pleaded in the complaint.

Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 457 (1999). When reviewing

motions to dismiss pursuant to section 2-615, we ask only whether the pleadings are

sufficient to state a cause of action. Cwikla v. Sheir, 345 Ill. App. 3d 23, 29 (2003). We

may affirm the trial court=s order on any ground substantiated by the record. Kostal v.

Pinkus Dermatopathology Laboratory, Inc., 357 Ill. App. 3d 381, 384 (2005).

       To state a cause of action for retaliatory discharge, a plaintiff must plead: (1) that

he or she has been discharged; (2) in retaliation for his or her activities; and (3) that the

discharge violates a clear mandate of public policy. Stebbings v. The University of

Chicago, 312 Ill. App. 3d 360, 365 (2000).

       In granting the Cubs' motion to dismiss, the circuit court found that the


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Whistleblower Act (740 ILCS 174/1 (West 2004)) preempted Krum's claim for retaliatory

discharge and under the facts set forth in Krum's complaint, Krum was unable to

establish a claim based on the Whistleblower Act. The court also found that, even if

the Whistleblower Act did not preempt Krum=s retaliatory discharge claim, his claim still

failed because the Athletic Trainers Practice Act could not satisfy the policy element of

retaliatory discharge. The court further held that the failure to renew an employment

contract for a fixed duration could not serve as a basis for a retaliatory discharge claim.

                                   Retaliatory Discharge

       On appeal, Krum first contends the circuit court erred in holding that the failure to

renew an employment contract for a fixed duration could not satisfy the "discharge"

element in a cause of action for retaliatory discharge. Specifically, Krum argues that

Illinois courts have previously recognized retaliatory discharge actions based on an

employer=s failure to rehire, and that other jurisdictions have recognized the failure to

renew a contract as actionable retaliatory conduct. The Cubs counter that the

authorities upon which Krum relies are inapposite, and that his complaint must fail

because his employment contract with the Cubs provided for a fixed duration. We

agree with the Cubs.

       The retaliatory discharge cause of action is a very narrow exception to the

doctrine of employment at-will. Palmateer v. International Harvester Co., 85 Ill. 2d 124,

128-29 (1981). Where an employment agreement does not specify a fixed duration,

either party can terminate the relationship Aat-will.@ Martin v. Federal Life Insurance Co.,


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1-05-2342


109 Ill. App. 3d 596, 600 (1982). The parties may alter the at-will nature of the

relationship, however, by providing for a fixed duration of employment. Cress v.

Recreation Services, Inc., 341 Ill. App. 3d 149, 171 (2003).

       In Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29 (1994), the Illinois

Supreme Court explained the scope of the retaliatory discharge cause of action. The

court defined an at-will employee as "a noncontracted employee [who] serves at the

employer=s will, and the employer may discharge such an employee for any reason or

no reason.@ Zimmerman, 164 Ill. 2d at 32 (emphasis added). Noting that previous

courts intended retaliatory discharge to be narrowly applied, the Zimmerman court

declined to recognize a cause of action predicated on retaliatory demotion. The court

stated that recognizing retaliatory demotion would "replace the well-developed element

of discharge with a new, ill-defined, and potentially all-encompassing concept of

retaliatory conduct or discrimination.@ Zimmerman, 164 Ill. 2d at 39. We are thus

constrained to interpret the elements of the retaliatory discharge cause of action

narrowly.

       Here, because Krum's employment was subject to a contract of fixed duration, he

was not an at-will employee. Krum is unable to cite to a single case where Illinois

courts have permitted a plaintiff to bring a retaliatory discharge claim on the basis of a

fixed term employment contract. Nevertheless, he contends that AIllinois courts have

long recognized that retaliatory discharge actions for failure to rehire or recall are valid.@

In each case upon which Krum relies, the underlying claims were based on the


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1-05-2342


Worker=s Compensation Act (820 ILCS 310/4(h) (West 2004)), which specifically

prohibits such retaliatory conduct. See Motsch v. Pine Roofing Co., 178 Ill. App. 3d

169, 175 (1989) (seasonal worker not recalled after filing worker=s compensation claim);

Klinkner v. County of DuPage, 331 Ill. App. 3d 48, 51 (2002) (denying plaintiff=s claim for

retaliatory failure to rehire or recall); Pietruszynski v. McClier Corp., 338 Ill. App. 3d 58,

64 (2003) (shielding employees from retaliation for testifying in worker=s compensation

proceedings).

       Krum nevertheless points to cases from other jurisdictions that have recognized

retaliatory discharge claims based on refusal to rehire or recall. Again, in each of these

cases, the underlying claim was based on a statute or law that specifically prohibited

retaliatory failure to rehire or retaliatory discrimination. See Johnson v. Trustees of

Durham Technical Community College, 139 N.C. App. 676, 683, 535 S.E. 2d 357, 362

(2000) (recognizing claim where statute defined retaliation as any Aadverse employment

action@); Daly v. Exxon Corp., 55 Cal. App. 4th 39, 43, 63 Cal. Rptr. 2d 727, 729 (1997)

(permitting claim where statute defined retaliation to include demotion, suspension, or

any manner of adverse discrimination). See also Kramer v. Logan County School

District No. R-1, 157 F.3d 620, 621 (8th Cir. 1998) (federal gender discrimination law);

Smith v. Borough of Wilkinsburg, 147 F.3d 272, 275, (3d Cir. 1998) (federal age

discrimination law); Payne v. McLemore=s Wholesale & Retail Stores, 654 F.2d 1130,

1133 (5th Cir. 1981) (Civil Rights Act of 1964, 42 U.S.C. ' 2000e-3(a)).

       Unlike the laws underlying these cases, the Athletic Trainers Practice Act, the


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statute upon which Krum relies, contains no language prohibiting retaliatory

employment conduct. Since our supreme court has consistently sought to restrict the

common law tort of retaliatory discharge, we hold that, absent a statutory basis,

contractual employees, such as Krum, cannot bring a claim for retaliatory discharge

when employers fail to renew an employment contract.

      Because we find that Krum cannot satisfy the first element of his claim for

retaliatory discharge, we need not reach Krum's contention that the circuit court erred in

finding that the Whistleblower Act preempted Krum's claim for retaliatory discharge.

                    Motion for Leave to File an Amended Complaint

      Krum=s final contention on appeal is that the circuit court erred in denying his

motion for leave to file an amended complaint. Subsequent to the circuit court's

dismissal of Krum's complaint, Krum made an oral motion for leave to file an amended

complaint. The circuit court denied Krum=s motion, finding that there were no additional

facts Krum could plead to cure the deficiencies in his complaint.

      We review the circuit court=s decision for abuse of discretion. Clemons v.

Mechanical Devices Co., 202 Ill. 2d 344, 351-52 (2002). The factors we consider are

whether: (1) the proposed amendment would cure a defect in the pleadings; (2) the

proposed amendment would prejudice or surprise other parties; (3) the proposed

amendment is timely; (4) there were previous opportunities to amend the pleading.

Clemons, 202 Ill. 2d at 355-56.

      Krum argues that he never proposed an amendment because the court never


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allowed him the opportunity to do so. He does not now propose an amendment either,

he only argues that it was improper for the circuit court to deny him the opportunity to

file an amended complaint. Notwithstanding Krum's contention, because we find that

Krum cannot establish that he was "discharged," he would be unable to allege any facts

to set forth a claim for retaliatory discharge. Therefore, the circuit court did not abuse its

discretion in denying his motion for leave to file an amended complaint.

       Accordingly, we affirm the judgment of the circuit court.

       Affirmed.

       THEIS, J., with ERICKSON, J., concurring.




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