dissenting:
The plaintiff in this case brought a common law action for retaliatory discharge instead of pursuing the remedies provided for in section 210 of the Energy Reorganization Act of 1974 (42 U.S.C. sec. 5851 (1982)). I disagree with the conclusion that plaintiff’s cause of action is not preempted by Federal law. Moreover, I find no justification for extending the tort of retaliatory discharge to cases where, as here, existing remedies adequately protect the employee’s interest in earning a livelihood and the public’s interest in safety. Therefore, in addition to finding that plaintiff’s cause of action is preempted by section 210, I would hold as a matter of law that plaintiff’s remedy lies solely under section 210.
The preemption doctrine has its basis in the supremacy clause of the Federal Constitution (U.S. Const., art. VI, cl. 2). The doctrine provides that when Congress has legislated on a given subject, concurrent State law may be preempted by the Federal law. (See generally Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 229-31, 91 L. Ed. 1447, 1459, 67 S. Ct. 1146, 1151-53; Hines v. Davidowitz (1941), 312 U.S. 52, 68, 85 L. Ed. 581, 587, 61 S. Ct. 399, 404-05.) In order to determine if a State law has been preempted, the courts must examine the congressional intent behind an enactment. Congress’ intent to preempt concurrent State law in a given area may be express or implied. (Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238, 248, 78 L. Ed. 2d 443, 452, 104 S. Ct. 615, 621; Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Com. (1983), 461 U.S. 190, 203-04; 75 L. Ed. 2d 752, 765, 103 S. Ct. 1713, 1722.) The Supreme Court in Fidelity Federal Savings & Loan Association v. De la Cuesta (1982), 458 U.S. 141, 73 L. Ed. 2d 664, 102 S. Ct. 3014, explained:
“Pre-emption may be either express or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’ *** Absent explicit pre-emptive language, Congress’ intent to supersede state law altogether may be inferred because ‘[t]he scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,’ because ‘the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,’ or because ‘the object sought to be obtained by federal law and the character of obligations imposed by it may reveal the same purpose.’ ***
Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when ‘compliance with both federal and state regulations is a physical impossibility,’ *** or when state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ ***.” (458 U.S. 141, 152-53, 73 L. Ed. 2d 664, 675, 102 S. Ct. 3014, 3022.)
See also Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238, 78 L. Ed. 2d 443, 104 S. Ct. 615.
The majority opinion acknowledges that section 210 of the Energy Reorganization Act of 1974 (42 U.S.C. sec. 5851 (1982)), sometimes referred to as the “whistle blower” protection statute, affords protection to employees who believe that they have been discharged or discriminated against because they have testified, given evidence, or reported violations of Federal nuclear safety standards. The type of employee conduct protected by the statute is broadly described. Some courts have held that the protections of section 210 apply to retaliatory employment action resulting from purely internal company disputes over radiation safety. (See Mackowiak v. University Nuclear Systems, Inc. (9th Cir. 1984), 735 F.2d 1159; Consolidated Edison Co. v. Donovan (2d Cir. 1982), 673 F.2d 61. Contra, Brown & Root, Inc. v. Donovan (5th Cir. 1984), 747 F.2d 1029.) No formal proceedings need to be initiated against the employer as a result of an employee’s assistance or participation in order for the employee to be protected by section 210. See 10 C.F.R. sec. 30.7(a)(2) (1985).
Section 210 is enforced by the United States Secretary of Labor. Employees who believe that they have been discharged or discriminated against in violation of section 5851(a) may file a complaint with the Secretary within 30 days after such violation occurs. (42 U.S.C. sec. 5851(b)(1).) The Secretary then investigates the complaint to determine if a violation occurred. If the Secretary finds a violation, he may award appropriate relief, including reinstatement of the employee to his former position, together with compensation (including back pay), terms and privileges of his employment; compensatory damages; and reasonable legal costs, including attorney fees and expert witness fees. (42 U.S.C. sec. 5851(b)(2)(B). See generally DeFord v. Secretary of Labor (6th Cir. 1983), 700 F.2d 281; Ellis Fischel State Cancer Hospital v. Marshall (8th Cir. 1980), 629 F.2d 563, cert. denied (1981), 450 U.S. 1040, 68 L. Ed. 2d 237, 101 S. Ct. 1757.) The Secretary’s orders are reviewable by the United States court of appeals. (42 U.S.C. sec. 5851(c)(1).) In addition, enforcement of the Secretary’s order may be initiated by the employee by filing suit in Federal district court. 42 U.S.C. sec. 5851(e).
There is no doubt that the regulation of the safety aspects of nuclear energy has been predominately a matter of Federal concern. (Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Com. (1983), 461 U.S. 190, 211-12, 75 L. Ed. 2d 752, 770, 103 S. Ct. 1713, 1726.) The purpose of section 210 is to encourage “employees and union officials [to] help assure that employers do not violate requirements of the Atomic Energy Act.” (42 U.S.C. sec. 5851, 1978 U.S. Code Cong. and Adm. News 7304.) Thus, section 210 touches on an area traditionally governed by Federal law.
In addition, section 210 represents just a part of the comprehensive and pervasive Federal regulatory scheme on nuclear energy. The statute here defines the class of individuals and entities subject to its prohibitions, defines the prohibited conduct, enumerates several and specific remedies available to employees, and provides for a detailed administrative and judicial process whereby aggrieved employees can seek redress for violations of the statute. A more comprehensive statute could hardly be imagined.
The fact that the regulation of the safety aspects of nuclear development has traditionally and almost exclusively been a matter of Federal not State concern, the pervasiveness of the Federal regulation of nuclear safety, and the comprehensive nature of the Federal “whistle blower” protection statute makes “ ‘reasonable the inference that Congress left no room for the States to supplement it.’ ” (Fidelity Federal Savings & Loan Association v. De la Cuesta (1982), 458 U.S. 141, 153, 73 L. Ed. 2d 664, 675, 102 S. Ct. 3014, 3022.) I would hold that plaintiff’s cause of action is preempted by section 210.
The majority opinion, in holding that section 210 does not preempt plaintiff’s common law cause of action for retaliatory discharge, relies primarily on Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238, 78 L. Ed. 2d 443, 104 S. Ct. 615. In that case, the plaintiff brought a common law tort action for injuries received by his decedent as the result of being contaminated by plutonium at defendant’s plant. The Supreme Court held that the award of punitive damages based on Oklahoma law was not preempted by the Atomic Energy Act of 1954 (42 U.S.C. secs. 2011 through 2284 (1976 ed. and Supp. V)). Today’s opinion, in addressing the preemption issue, simply states: “We find the situation here analogous to Silk-wood and conclude that it was not the congressional intent to preempt the field.” (108 Ill. 2d at 509.) The reliance on the Silkwood case is misplaced. The Supreme Court in Silkwood found express language in the Price-Anderson Act (42 U.S.C. sec. 2210 (1982)), an amendment to the Atomic Energy Act, which clearly indicated that State tort remedies for persons injured by nuclear accidents were, with certain exceptions, not preempted. (464 U.S. 238, 251-53, 78 L. Ed. 2d 443, 454-55, 104 S. Ct. 615, 623. See generally Comment, Federal Preemption of the State Regulation of Nuclear Power: State Law Strikes Back (1984), 60 Chi.-Kent L. Rev. 989, 1004-05.) Unlike the clear expression of congressional intent found in the language and history of the Price-Anderson Act, Congress has not expressly allowed for State tort remedies in section 210 of the Energy Reorganization Act of 1974. Moreover, the court in Silkwood found the absence of a Federal remedy to be significant. The court observed that it “is difficult to believe that Congress would *** remove all means of judicial recourse for those injured by illegal conduct.” (464 U.S. 238, 251, 78 L. Ed. 2d 443, 454, 104 S. Ct. 615, 623.) Here, by contrast, Congress has provided plaintiff with a Federal remedy.
Furthermore, the impetus for this court’s recognition of the tort of retaliatory discharge was the lack of any remedy available to employees in situations where they were discharged in “contravention of a clearly mandated public policy.” (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134.) In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, this court recognized a cause of action for retaliatory discharge where a worker had been discharged for filing a workers’ compensation claim. In so doing, the court reasoned that such an action was necessary in order to insure that at-will employees would be able to freely exercise their rights under the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) In Palmateer, a majority of this court recognized a cause of action for retaliatory discharge where an employee alleged he was fired for supplying information to local law-enforcement officials concerning- the possible criminal involvement of a fellow employee. Again, the rationale of the majority was that no remedy existed to protect an employee who was discharged for engaging in conduct which promoted the public policy favoring “citizen crime-fighters.” (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 132.) The court stated:
“With the rise of large corporations conducting specialized operations and employing relatively immobile workers who often have no other place to market their skills, recognition that the employer and employee do not stand on equal footing is realistic. [Citation.] In addition, unchecked employer power, like unchecked employee power, has been seen to present a distinct threat to the public policy carefully considered and adopted by society as a whole. As a result, it is now recognized that a proper balance must be maintained among the employer’s interest in operating a business efficiently and profitably, the employee’s interest in earning a livelihood, and society’s interest in seeing its public policies carried out.” (85 Ill. 2d 124, 129.)
Even in Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, a case in which I wrote a dissent, a majority of this court held that a cause of action for retaliatory discharge existed because they believed such an action was “necessary” in order to provide employees covered by a collective bargaining agreement with a “complete remedy.” 105 Ill. 2d 143, 149.
When the tort of retaliatory discharge is placed in its proper historical perspective, it is difficult to justify today’s decision. Based on the record before the court, there is no indication that section 210 is inapplicable to the present case. The record indicates that defendant is licensed by the Nuclear Regulatory Commission and the employment dispute involves allegations of Federal radiation safety standards. Moreover, there is no indication that the remedy afforded by section 210 is inadequate to protect both the public’s interest in safety and the employee’s interest in earning a livelihood. Certainly Congress considered all the competing policies involved when it enacted section 210. (See 42 U.S.C. sec. 5851, 1978 U.S. Code Cong, and Adm. News 7303-04.) Thus, irrespective of whether today’s action is preempted by Federal law, I do not think that this court should intrude into an area already regulated by a comprehensive Federal statute.
Courts in other jurisdictions have refused to recognize a cause of action for retaliatory discharge in circumstances where employees have adequate statutory or administrative remedies available to them. (See, e.g., Corbin v. Sinclair Marketing, Inc. (Colo. App. 1984), 684 P.2d 265; Ohlsen v. DST Industries, Inc. (1981), 111 Mich. App. 580, 314 N.W. 2d 699; Davis v. Boise Cascade Corp. (Minn. 1979), 288 N.W. 2d 680; Walsh v. Consolidated Freightways, Inc. (1977), 278 Or. 347, 563 P.2d 1205; Brudnicki v. General Electric Co. (N.D. Ill. 1982), 535 F. Supp. 84.) I find these cases persuasive, and would hold as a matter of State common law that plaintiff does not have a cause of action for retaliatory discharge.
In addition, I disagree with the conclusion that plaintiffs’ complaint states a cause of action for retaliatory discharge. In my opinion the complaint does not allege facts sufficiently setting forth the elements of the cause of action. The majority opinion states: “[T]he complaint alleged that plaintiff was discharged in retaliation for his refusal to work in the handling of cobalt 60 while the operations were being conducted in violation of regulations promulgated by the Nuclear Regulatory Commission and published in the Federal Register.” (Emphasis added.) (108 Ill. 2d at 509.) That statement is incorrect.
The complaint only alleged that plaintiff was discharged for his “reasonable refusal to work with the Cobalt 60 Unit,” and that the unit was “not operated properly and could cause serious and permanent injury.” The complaint also alleged that an investigation by the Nuclear Regulatory Commission disclosed certain specified inadequacies in defendant’s radiation-safety program. However, it did not, as the majority opinion suggests, allege that any violations existed at the time plaintiff was discharged, or that plaintiff was required to work with the unit while defendant’s program was in violation of Federal safety standards. As the appellate court in this case correctly observed, the allegations of unsafe conditions “must be viewed as of the time of plaintiff’s discharge, which was on August 20, 1979. The record reveals that the investigations by the NRC occurred on October 12, 1979, and March 11, 1981. There is no indication in the record that any investigation was contemplated nor pending on the date of plaintiff’s discharge.” 123 Ill. App. 3d 539, 544-45.
Although pleadings are to be liberally construed and formal or technical allegations are not necessary, a complaint must, nevertheless, contain facts necessary to state a cause of action. (People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 145; Fanning v. LeMay (1967), 38 Ill. 2d 209, 211.) A complaint fails to state a cause of action when it omits facts, the existence of which are necessary for plaintiff to recover. (Ritchey v. Maksin (1978), 71 Ill. 2d 470, 474-75.) Assuming, arguendo, that discharge of an employee for refusal to work in handling cobalt 60 while the operations violated Federal safety standards states a claim for retaliatory discharge, plaintiffs’ complaint did not allege sufficient facts showing that to be the case.
For the reasons stated, I must respectfully dissent.
JUSTICE RYAN joins in this dissent.