Lambert v. City of Lake Forest

• Decision Date: 03 August 1989
• Docket Number: No. 2-88-0925,2-88-0925
• Citation: 134 Ill.Dec. 709,542 N.E.2d 1216,186 Ill.App.3d 937
• Parties: , 134 Ill.Dec. 709, 115 Lab.Cas. P 56,285, 4 IER Cases 1353 Harvey LAMBERT, Plaintiff-Appellee, v. The CITY OF LAKE FOREST, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1216

542 N.E.2d 1216

186 Ill.App.3d 937, 134 Ill.Dec. 709,

115 Lab.Cas. P 56,285,

4 IER Cases 1353

Harvey LAMBERT, Plaintiff-Appellee, v. The CITY OF LAKE FOREST, Defendant-Appellant.

No. 2-88-0925.

Appellate Court of Illinois Second District.

Aug. 3, 1989.

Sarah Hansen Sotos, Patrick J. Fanning (argued), Elizabeth A. Brown, Judge &amp Knight, Ltd., Park Ridge, for City of Lake Forest.

Kathleen R. Keller, Albert J. Salvi (argued), Law Offices of Patrick A. Salvi, for Harvey Lambert.

Justice McLAREN delivered the opinion of the court:

Defendant, City of Lake Forest, appeals from the denial of its post-trial motion. After a jury trial, the court entered judgment on the verdict in favor of plaintiff, Harvey Lambert. Lambert was awarded $98,265 based upon his complaint for retaliatory discharge. We reverse.

Lambert began working for the City of Lake Forest (City) in 1966 as a maintenance man in the Parks Department. He was an at-will employee throughout his tenure with the City. He received several promotions and became foreman of the streets department in 1979. In late 1981, the City formulated a plan to reorganize the City's administrative setup. As a result of this reorganization, the positions of foreman of streets and foreman of sanitation were to be combined into one foreman's position to be filled by Lambert. Lambert assumed this new position in February 1982, retaining his designation as streets foreman and preparing to assume the duties of sanitation foreman in January 1983.

On September 29, 1982, Anthony Mazza, superintendent of fleet maintenance, committed suicide. Mazza was one of the employees affected by the reorganization. Following the reorganization, Mazza appeared to be under increased stress or anxiety. The day after the suicide, Lambert told his supervisors, LeRoy Baur (Baur) and Harold Robson (Robson), that he thought Mazza's suicide was brought about by job pressures. In March 1983, the City received an application for adjustment of a workers' compensation claim filed with respect to the Mazza suicide.

On April 28, 1983, Robson convened a meeting of the supervisory personnel of the City, including Lambert. Robson informed everyone that the City was involved in a lawsuit filed by Mrs. Mazza on behalf of her late husband and that the suit would mean a lot of money to the City. He also stated that the City investigator and attorney would be conducting interviews with 9 or 10 of the employees on that day. Robson informed those in attendance that neither they nor their men should talk to Mrs. Mazza's attorney and should inform management if Mrs. Mazza's attorney contacted them.

After the meeting, Lambert told Baur that he did not want to be interviewed. Baur stated that he told Lambert to inform the City investigator and attorney that he did not want to talk. Lambert stated that he told Baur the suicide was job related, and Baur told him that he had better not tell the investigator or attorney that. Lambert's interview lasted approximately five minutes because he refused to provide any information.

Lambert's next job performance evaluation was conducted on August 1, 1983. This evaluation contained comments on many areas in which Lambert's job performance was suspect. After reviewing Baur's comments, Robson indicated that Lambert would be evaluated again on December 1, 1983. Robson also noted that, "failure to show improvement will require a reassessment of [Lambert's] value to the organization and reassignment to other duties."

On November 28, 1983, Baur evaluated Lambert's performance and noted that Lambert's effort did not meet the expectations the City had of a person in this position. Furthermore, Baur stated that, "in my opinion, Harvey is not presently in a position where he can be of the most advantage to the city."

On December 12, 1983, Lambert attended a meeting with Baur, Robson and John Fisher, the city's personnel director. Lambert was offered a check for $4,000 and asked to sign a letter of resignation. Lambert refused. He was then discharged. Lambert met with John Fischbach, the city manager, Robson and Fisher on January 6, 1984, and again on January 26, 1984. At the latter meeting, Lambert was offered a check for $9,500 and asked to sign a letter of resignation. Again, Lambert refused.

On October 29, 1986, Lambert filed a 10-count complaint against the City, Fischbach, Baur, Robson and Fisher, for retaliatory discharge and intentional infliction of emotional distress. The basis of the complaint was that Lambert was fired for failing to give favorable information or testimony on behalf of the City in the workers' compensation claim filed by the heirs of Mazza.

On December 23, 1987, the defendants filed a motion for summary judgment. The trial court granted summary judgment in favor of defendants on nine counts. All of the individual defendants were dismissed from the suit, and Lambert's claim for intentional infliction of emotional distress was also disposed of. The surviving count of the complaint was count I against the City for retaliatory discharge. The court found that a question of material fact existed, and, therefore, the case proceeded to trial on count I.

At the close of evidence, the City filed a motion for a directed verdict. This motion was denied and the case was submitted to the jury. The jury returned a verdict in favor of plaintiff and awarded damages in the sum of $98,265. Judgment was entered on the verdict. The City filed a post-trial motion which was denied on August 26, 1988. This appeal followed.

Defendant contends that the trial court erred by denying summary judgment on count I of its complaint. A prior order denying a motion for summary judgment is not reviewable after an evidentiary trial, as any error in the denial is merged in the subsequent trial. (Banwart v. Okesson (1980), 83 Ill.App.3d 222, 225, 38 Ill.Dec. 630, 403 N.E.2d 1234; Romano v. Bittner (1987), 157 Ill.App.3d 15, 22, 109 Ill.Dec. 856, 510 N.E.2d 924.) Consequently, we need not review the trial court's order denying summary judgment on count I of plaintiff's complaint.

Defendant contends that the issue in this case is whether the trial court improperly expanded the tort of retaliatory discharge. Phrasing the issue in this manner does not provide us with an understanding of the actual issue in this case, and only after reading appellant's not-so-straightforward brief were we able to determine that the actual threshold issue on review is whether plaintiff's complaint states a cause of action for retaliatory discharge. While defendant did not file a motion to dismiss pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-615), such an attack may be made at any time and by any means if it appears that, as a matter of law, the complaint wholly and absolutely fails to state a cause of action which the law will recognize. (Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill.App.3d 245, 258, 111 Ill.Dec. 486, 512 N.E.2d 1027; Wagner v. Kepler (1951), 411 Ill. 368, 371, 104 N.E.2d 231.) A complaint that fails to state a cause of action cannot support a judgment. (Orthopedic & Reconstructive Surgery, S.C. v. Kezelis (1986), 146 Ill.App.3d 227, 231, 100 Ill.Dec. 47, 496 N.E.2d 1112.) As stated in Wagner: "The nature of this contention requires that it be considered first." (Wagner, 411 Ill. at 371, 104 N.E.2d 231.) We find that plaintiff's complaint does state a cause of action for retaliatory discharge for the reasons stated below.

In Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, our supreme court first recognized the tort of retaliatory discharge. However, the common-law principle that an employer may fire an employee at will for any reason or no reason is still the law in Illinois. (Barr v. Kelso-Burnett Co. (1985), 106 Ill.2d 520, 525, 88 Ill.Dec. 628, 478 N.E.2d 1354.) Our supreme court has expressed a narrow interpretation of the tort of retaliatory discharge, and the court does not support the expansion of this tort. (Barr, 106 Ill.2d at 525, 88 Ill.Dec. 628, 478 N.E.2d 1354.) To establish a cause of action for retaliatory discharge, the plaintiff must show: (1) that the employee was discharged in retaliation for the employee's activities; and (2) that the discharge is in contravention of a clearly mandated public policy. Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 134, 52 Ill.Dec. 13, 421 N.E.2d 876; Colley v. Swift & Co. (1984), 129 Ill.App.3d 812, 818, 84 Ill.Dec. 963, 473 N.E.2d 364.

Defendant contends that it is the second element of retaliatory discharge that is absent here. The discharge was not in contravention of clearly mandated public policy. Therefore, no cause of action for retaliatory discharge can lie.

The court in Palmateer, in discussing what constitutes clearly mandated public policy, stated:

"There is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State's constitution and statutes and, when they are silent, in its judicial decisions." (Palmateer, 85 Ill.2d at 130, 52 Ill.Dec. 13, 421 N.E.2d 876.)

Specifically, with respect to retaliatory discharge, the court stated that "a matter must strike at the heart of a citizen's social rights, duties, and responsibilities before the tort will be allowed." Palmateer, 85 Ill.2d at 130, 52 Ill.Dec. 13, 421 N.E.2d 876.

Illinois courts have steadfastly opposed the expansion of the tort of retaliatory discharge. A review of all retaliatory discharge cases in Illinois reveals that, with one exception, retaliatory discharge actions are allowed in only two settings. The first situation is when an employee is discharged for filing a claim under the Workers' Compensation Act (Ill.Rev.Stat.1987, ch. 48, par. 138.1 et seq.). (See Kelsay, 74 Ill.2d 172, 23...