Kmery v. N.E. Ill. Regional Commuter R.R.

• Decision Date: 30 November 2007
• Docket Number: No. 1-05-3584.,1-05-3584.
• Citation: 377 Ill. App. 3d 1013,880 N.E.2d 1002
• Parties: Ellen K. EMERY, Plaintiff. Appellee, v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION d/b/a Metra/Metropolitan Rail, and Michael Noland, Theresa Barnett, Sue-Ann Rosen, Richard Capra, and Constance Valkan, individually named and in their official capacities, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

880 N.E.2d 1002

377 Ill. App. 3d 1013

Ellen K. EMERY, Plaintiff. Appellee, v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION d/b/a Metra/Metropolitan Rail, and Michael Noland, Theresa Barnett, Sue-Ann Rosen, Richard Capra, and Constance Valkan, individually named and in their official capacities, Defendants-Appellants.

No. 1-05-3584.

Appellate Court of Illinois, First District, Sixth Division.

November 30, 2007.

H. Candace Gorman, Law Offices of H. Candace Gorman, Chicago, for Appellant.

Joseph M. Gagliardo, Thomas Bradley, Larner, Muchin, Dombrow, Becker, Levin and Tominberg, Ltd., Chicago, on behalf of Metra, Theresa Barnett, Richard Capra and Constance Valkan.

Brian L. Crowe, Patricia S. Spratt, Shefsky and Froelich, Ltd., Chicago, on behalf of Michael Noland and Sue-Ann Rosen.

Justice JOSEPH GORDON delivered the opinion of the court:

Plaintiff, Ellen K. Emery, filed a sixcount complaint against six defendants, (1) her former employer, Northeast Illinois Regional Commuter Railroad Corporation, d/b/a Metra, and (2) five attorneys employed by Metra: General Counsel Michael Noland, Associate General Counsel Theresa Barnett, and senior attorneys Sue-Ann Rosen, Richard Capra, and Constance Valkan. Plaintiff sought relief under the common-law torts of retaliatory discharge and demotion (count I), defamation (count TI) and compelled self-defamation (count III) as against Metra. Plaintiff further sought relief for defamation (count II), compelled self-defamation (count III), tortious interference with contract (count IV), tortious interference with business relationship and prospective economic advantage (count V), and civil conspiracy (count VI) as against Noland, Barnett, Rosen, Capra and Valkan, individually. The circuit court dismissed count I (retaliatory discharge and retaliatory demotion) and count III (compelled self-defamation) with prejudice pursuant to sections 2-615 and 2-619 of the Code. of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2002)). The circuit court also dismissed count II (defamation), count IV (tortious interference with contract) and count VI (civil conspiracy) without prejudice and granted plaintiff leave to replead these causes of action. Plaintiff was allowed to proceed only with count V of her complaint (tortious interference with business relationship and prospective economic advantage). On appeal, plaintiff challenges the trial court's dismissal of her retaliatory discharge (count I), retaliatory demotion (count I), and compelled self-defamation (count III) claims. For the reasons that follow, we affirm.

I. BACKGROUND

The record below reveals the following relevant facts and procedural history. On August 19, 2004, plaintiff field a complaint in the circuit court of Cook County, alleging, among other things, retaliatory discharge (count I), retaliatory demotion (count I) and compelled self-defamation (count III).¹

The complaint alleges the following pertinent facts; which are common to all of plaintiffs claims. Defendant, Metra, is a public corporation (70 ILCS 3615/1.01 et seq. (West 2002)). Plaintiff is a former assistant general counsel to Metra and was considered part of the professional corporate staff and a member of the management. As in-house counsel, plaintiff answered to the General Counsel, who in turn answered to the Metra executive director. Plaintiff was not a member of any labor union or subject to the collective bargaining agreement of any labor union, and did not have a remedy under the Railway Labor Act (RLA) (45 U.S.C. § 151 et seq. (West 2000)). As a result of her position with Metra, plaintiff had the ability to effectively recommend employees to be hired and fired, to authorize overtime, and to transfer and establish assignments.

According to the complaint, plaintiff was initially hired by Metra on June 23, 1997, as a senior attorney designated to work on cases arising out of the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (2000)). Defendant Noland hired Emery based upon her outstanding reputation as a litigator. In December 1997, six months after she was hired, plaintiff was promoted to associate general counsel and director of litigation.

During her employment with Metra, and prior to January 2002, plaintiff received raises and bonuses from Metra, as well as compliments on her outstanding work.

According to the complaint, in July 1999, plaintiff seriously injured her knee at work when she t ripped over a set of raised electrical sockets at Metra's offices. As a result of this injury, plaintiff had several surgeries on her knee and took disability leave for a limited time.

On July 29, 1999, plaintiff filed a claim for her injury with Metra's risk management department, but Metra refused to pay most of plaintiffs medical bills. For over two years, plaintiff repeatedly attempted to resolve her claim with Metra, but Metra refused to discuss her claim and continued to refuse to pay most of her medical bills.

On several occasions, plaintiff spoke to defendant Capra, senior litigation attorney for Metra, and told him that she would be forced to hire counsel, to which Capra responded, "You have to do what you have to do."

The complaint further alleges that in December 2001, plaintiff retained counsel, James Farina, of Hoey, Farina and Downes, and filed a lawsuit under FELA (45 U.S.C. § 51. et seq. (2000)) against Metra, claiming that Metra was negligent in allowing the electrical sockets to protrude from the floor and that its actions violated the regulations promulgated under the Occupational Safety and Health Act of 1970 (OSHA) (29 U.S.C. § 651 et seq. (2000)).

The complaint states that on January 14, 2002, plaintiff received her annual performance review from defendant Noland. Although plaintiff had always received annual bonuses for her performance, and had continued to perform in an exemplary fashion, at that time, defendant Noland told her that he did not believe she deserved a bonus. As a result, in 2001, plaintiff was the only attorney at Metra who did not receive an annual bonus.

The complaint further avers that on January 23, 2002, plaintiff was told that because she filed the lawsuit, she had committed ethical violations and could therefore no longer represent Metra in FE LA cases. Plaintiff was demoted to senior attorney, her caseload was subjected to "extraordinary scrutiny," and she was criticized for her performance and lack of professionalism. Specifically, plaintiff was denied access to FELA case files and was told t hat claims personnel, law personnel, and outside counsel would be told that she would no longer be representing Metra in FELA cases, and that they should therefore not communicate with her.

Subsequently, in public court filings and public hearings, Metra repeatedly attempted to disqualify plaintiffs attorneys, Hoey, Farina, and Downes, from cases involving Metra, ostensibly accusing plaintiff of having revealed attorney-client confidences to this law firm.

According to the complaint, on March 4, 2002, defendant Noland informed plaintiff that she had breached her ethical obligations to Metra and offered her an opportunity to resign with her associate general counsel title and two months severance pay on the condition that she release all of her claims against Metra. Noland told plaintiff that if she did not accept this offer, she would be terminated as senior attorney with only two weeks' severance pay. Plaintiff was given 24 hours to consider the offer. When plaintiff informed defendant Noland that she would not resign, she was immediately terminated without any severance pay.

The complaint also alleges that beginning in January 2002, and continuing after plaintiffs discharge from Metra, defendants Noland, Barnett, Rosen, Capra and Valkan engaged in a fierce smear campaign against plaintiff, accusing her of being disloyal, unethical, untruthful, incompetent and of sharing client confidences with opposing counsel. Defendants made these comments to plaintiffs coworkers, out side attorneys who have represented Metra, other attorneys practicing in Chicago and elsewhere, and federal and state court judges. Among other things, defendants have told people that: (1) plaintiff was "terminated from Metra for cause" and for "various instances of misconduct"; (2) that in her own FELA lawsuit, plaintiff will use Metra's confidential information for her own benefit and to Metra's detriment; and (3) that Metra was required under the Rules of Professional Responsibility both to fire plaintiff and report her to the Attorney Registration and Disciplinary Commission (ARDC).²

As a result, in her complaint, plaintiff sought relief for, among other things, retaliatory discharge and demotion, and compelled self-defamation.

As a response to plaintiff complaint, on November 1, 2004, defendant Metra filed a section 2-615 and section 2-619 motion to dismiss the complaint. On November 18, 2004, the individual defendants followed suit and similarly filed a section 2-615 and section 2-619 motion to dismiss. Because both motions raised identical or similar contentions, they were argued together to the trial court.

With respect to plaintiffs claim for retaliatory demotion (count I), defendant Metra argued that this claim should be dismissed pursuant to section 2-615 of the Code because the cause of action is not recognized under Illinois law. Similarly, with respect to plaintiff's claim for compelled self-defamation (count II), both the individual defendants, and defendant Metra argued that the claim was properly dismissed under section 2-615 of the Code, as Illinois did not recognize such a cause of action.

With respect to plaintiff's retaliatory discharge action (count I), defendant Metra argued that the complaint should be dismissed pursuant to section 2-615 because discharging an employee who files a lawsuit under FELA does not give rise to a state-law action for retaliatory discharge. Specifical...