Hicks v. Resolution Trust Corp., 87 C 8593.

• Decision Date: 19 March 1990
• Docket Number: No. 87 C 8593.,87 C 8593.
• Citation: Hicks v. Resolution Trust Corp., 736 F.Supp. 812 (N.D. Ill. 1990)
• Parties: John HICKS, Plaintiff, v. RESOLUTION TRUST CORPORATION as Receiver for Clyde Federal Savings and Loan Association, Sylvia Meidema, Robert Ropa, Valerian Musselman, Nicholas Lash, Ernest Melichar, Erwin Kucera, Steven Kuroski, and Lydia Franz, Defendants.
• Court: U.S. District Court — Northern District of Illinois

736 F. Supp. 812

John HICKS, Plaintiff, v.RESOLUTION TRUST CORPORATION as Receiver for Clyde Federal Savings and Loan Association, Sylvia Meidema, Robert Ropa, Valerian Musselman, Nicholas Lash, Ernest Melichar, Erwin Kucera, Steven Kuroski, and Lydia Franz, Defendants.

No. 87 C 8593.

United States District Court, N.D. Illinois, E.D.

March 19, 1990.

John Kneafsey and Stephen G. Kehoe, Nisen & Elliott, Chicago, Ill., for plaintiff.

George W. Groble, Groble & Groble, Ltd., Philip J. Fowler, Chicago, Ill., and Edward J. O'Meara, Fed. Home Loan Bank Bd., Washington, D.C., for defendants.

MEMORANDUM OPINION AND ORDER

LINDBERG, District Judge.

This matter comes before the court upon motions by the defendants to dismiss plaintiff's third amended complaint for failure to state a cause of action.Defendants' motions to dismiss are granted.

Plaintiff was fired as an employee of defendant, Clyde Federal Savings and Loan (Clyde) on April 24, 1987.As part of his duties for defendant, plaintiff was the officer in charge of Clyde's compliance with the federal Community Reinvestment Act (CRA).12 U.S.C.A. § 2901, et seq.(1989).Plaintiff alleged that Clyde was in violation of the CRA and plaintiff's attempts to inform defendant of its noncompliance with the CRA and his attempts to bring defendant into compliance with the CRA led to defendant's firing of plaintiff.

On October 1, 1987, plaintiff filed a three count complaint naming defendantsClyde Federal Savings and Loan Association, Sylvia Meidema, Robert Ropa, Valerian Musselman, Nicholas Lash, Ernest Melichar, Erwin Kucera, Steven Kuroski, and Lydia Franz.Count I of the complaint alleged that Clyde and Meidema fired plaintiff without cause in violation of an alleged employment contract.Count II of plaintiff's complaint alleged that Clyde and Meidema fired him in retaliation for his complaints that Clyde's advertising policy violated the CRA.Count III alleged that Meidema and the other board members Ropa, Musselman, Lash, Melichar, Kucera, Kuroski, and Franz, conspired to breach plaintiff's alleged employment contract and that their actions amounted to tortious interference with the contract.

Defendants filed a motion to dismiss all three counts of the complaint.In a published opinion, Judge Bua granted defendants' motion to dismiss all three counts except as to Count II which Judge Bua allowed to stand as against Clyde ruling that it sufficiently stated a cause of action for the tort of retaliatory discharge.Hicks v. Clyde Federal Savings and Loan,696 F.Supp. 387(N.D.Ill.1988).Defendant Meidema was dismissed from Count II based upon Judge Bua's determination that the tort of retaliatory discharge in Illinois does not lie against the supervisor or other employee, but only against the employer.696 F.Supp. 387.Counts I and III were dismissed based on Judge Bua's determination that no contract of employment existed between plaintiff and defendant and that plaintiff as an employee at-will could be dismissed without cause.696 F.Supp. 387.

On May 8, 1989, plaintiff filed a second amended complaint which detailed the specific circumstances surrounding the alleged noncompliance with the CRA by defendant Clyde and plaintiff's attempts to inform defendant of this noncompliance.

In November of 1989, this was one of the cases transferred to this court to create a civil docket.

On January 23, 1989, plaintiff filed a motion which sought reconsideration of Judge Bua's prior order dismissingdefendant Meidema from plaintiff's retaliatory discharge count.Additionally, plaintiff sought leave to file his third amended complaint, which not only would add Meidema as a defendant to plaintiff's retaliatory discharge claim, but also the other defendants who were members of the board.This court, upon reconsideration of Judge Bua's dismissal, granted plaintiff's motion based upon its conclusion that the law in Illinois, though unsettled, would allow a claim for retaliatory discharge against not only the employer, but the supervisor or other agent of the employer who is involved in the actions which led to the alleged retaliatory discharge.SeeFellhauer v. City of Geneva, et al.,190 Ill.App.3d 592, 137 Ill. Dec. 846, 546 N.E.2d 791(1989);appeal allowed, 129 Ill.2d 563, 140 Ill.Dec. 670, 550 N.E.2d 555(1990).Plaintiff was granted leave to file his third amended complaint which named, not only Meidema, but the defendants Ropa, Musselman, Lash, Melichar, Kuroski, Kucera, and Franz.

Defendant Clyde filed a motion to dismiss plaintiff's third amended complaint for failure to state a cause of action for retaliatory discharge.Defendant Meidema also filed a motion to dismiss for failure to state a cause of action for retaliatory discharge.The other defendants: Ropa, Musselman, Lash, Melichar, Kuroski and Franz, filed a motion to dismiss plaintiff's third amended complaint for failure to state a cause of action for retaliatory discharge and for failure to name them as defendants within the statute of limitations.Defendant Kucera did not join the motion to dismiss.The court has received a suggestion that his death occurred on June 2, 1989.

The Resolution Trust Corporation, as receiver for Clyde, was substituted as defendant on February 26, 1990.(This defendant will continue to be referred to as Clyde throughout the opinion.)

Defendants' motions to dismiss seek this court's reconsideration of a prior ruling which denied similar motions to dismiss which raised the same arguments.While the doctrine of the law of the case suggests that the court should refrain from reconsidering a prior ruling in the same case, the law of the case is a discretionary doctrine and is not designed to perpetuate error.Champaign-Urbana News Agency, Inc. v. J.L. Cummins News Co., Inc.,632 F.2d 680(7th Cir.1980).Whereas here, the court is convinced that the prior ruling was clearly erroneous, the court should not hesitate to correct error.632 F.2d 680.

The issue which the court in its discretion chooses to reconsider is whether plaintiff's claim that he was fired for reporting defendant Clyde's noncompliance with the CRA and for his attempts to bring defendant within compliance of the CRA, states a cause of action for retaliatory discharge in Illinois.

An employer commits the tort of retaliatory discharge in Illinois when the employee is discharged in retaliation for the employee's activities and the discharge of the employee for such activities contravenes a clearly mandated public policy which affects the citizens of the State of Illinois collectively.Palmateer v. International Harvester Co.,85 Ill.2d 124, 52 Ill. Dec. 13, 421 N.E.2d 876(1981).What constitutes a clearly mandated public policy of the citizens of the State of Illinois collectively is to be found in the State's constitution, statutes, and, when they are silent, in its judicial decisions.52 Ill.Dec. 13, 421 N.E.2d 876.

The Illinois Supreme Court recognized the tort of retaliatory discharge for the first time in Kelsay v. Motorola, Inc.,74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353(1978).In Kelsay,the court held that an employee allegedly fired for filing a workers' compensation claim under the Illinois Workers' Compensation Act,Ill.Rev.Stat. ch. 48, para. 138.1 et seq.(Smith-Hurd 1986), stated a cause of action for retaliatory discharge.In Kelsay,the court discussed how the Workers' Compensation Act substituted an entirely new system of rights and remedies and procedures for all previously existing common law rights and liabilities between employers and employees subject to the Act for accidental injuries to employees arising out of and in the course of employment.23 Ill.Dec. at 562, 384 N.E.2d at 356.A fundamental purpose of the Workers' Compensation Act is to afford protection to employees by providing prompt and equitable compensation for their injuries.23 Ill.Dec. at 562, 384 N.E.2d at 356.The court found that the legislature's enactment of the Workers' Compensation Act was in furtherance of a sound public policy to provide efficient remedies for and protection of employees.23 Ill.Dec. at 563, 384 N.E.2d at 357.The court found that the legislative scheme of the Act would be seriously undermined if employers were permitted to abuse their power to terminate employees by threatening to discharge employees for seeking compensation under the Act.The court refused to ignore the fact that many employees faced with such a dilemma would choose to retain their jobs, and thus, in effect, be left without a remedy either at common law or statutory.23 Ill.Dec. at 563, 384 N.E.2d at 357.The court stated "this result, which effectively relieves the employer of the responsibility expressly placed upon him by the legislature, is untenable and is contrary to the public policy expressed in the Workers' Compensation Act."23 Ill.Dec. at 563, 384 N.E.2d at 357.The court went on to reject the employer's argument that the legislature's amendment of the Act in 1975 to add criminal sanctions against an employer who threatened or effected such a discharge evidenced a decision that no civil remedy should exist.23 Ill.Dec. at 563, 384 N.E.2d at 357.The court held that the public policy of the State, as stated in the Workers' Compensation Act, could only be effectively implemented and enforced by allowing a civil remedy for damages, distinct from any criminal sanctions which may be imposed on employers for violating the Act after 1975. 23 Ill.Dec. at 564, 565, 384 N.E.2d at 358, 359.

"The foundation of the tort of retaliatory discharge lies in the protection of public policy."Palmateer v. International Harvester Co.,85 Ill.2d 124, 52 Ill.Dec. 13, 17, 421 N.E.2d 876, 800(1981).The determination of what is clearly mandated public policy of the State of Illinois has been called the Achilles heel of the principle underlying the tort of retaliatory discharge.52 Ill.Dec. at 15, 421 N.E.2d at 878.In Palmateer, the ...