Smith v. Waukegan Park Dist.

• Decision Date: 17 April 2008
• Docket Number: No. 104960.,104960.
• Citation: 231 Ill.2d 111,896 N.E.2d 232
• Parties: Gregory A. SMITH, Appellant, v. WAUKEGAN PARK DISTRICT, Appellee.
• Court: Illinois Supreme Court

896 N.E.2d 232

231 Ill.2d 111

Gregory A. SMITH, Appellant, v. WAUKEGAN PARK DISTRICT, Appellee.

No. 104960.

Supreme Court of Illinois.

April 17, 2008.

Modified Upon Denial of Rehearing September 22, 2008.

Richard D. Grossman, Chicago, for appellant.

Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., Chicago (Joseph M. Gagliardo, Gregory R. James, Jr., Debrai G. Haile, Joshua A. Dombrow, Chicago, and Edward F. Dutton, Wheaton, of counsel), for appellee.

OPINION

Justice KILBRIDE delivered the judgment of the court, with opinion:

Plaintiff, Gregory Smith, sued his employer, the Waukegan Park District, in the circuit court of Lake County, alleging the District discharged him in retaliation for filing a workers' compensation claim. The District filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2002)), claiming immunity pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2002)). The circuit court granted the motion to dismiss, and the appellate court affirmed the dismissal. 373 Ill.App.3d 626, 312 Ill.Dec. 102, 869 N.E.2d 1093. We allowed Smith's petition for leave to appeal (210 Ill.2d R. 315). We now reverse and remand.

I. FACTUAL BACKGROUND

In his complaint against the District, Smith alleged he was a seasonal park maintenance employee for the District and performed his work satisfactorily. He suffered a work-related injury on May 8, 2002, requiring medical treatment and time off work. Smith filed a claim under the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2002)).

On June 24, 2002, Smith returned to work and the District insisted he submit to a drug and alcohol test. Smith refused. Smith alleged the drug-test demand was "retaliatory harassment" for filing a workers' compensation claim. After Smith's refusal, District supervisor Mike Trigg informed Smith by letter that he was terminated effective June 24 for his failure to take the drug and alcohol test.

The District responded to the complaint by filing a motion to dismiss under section 2-619(a)(9) of the Code. The motion asserted immunity from Smith's claim of retaliatory discharge under section 2-109 of the Tort Immunity Act (745 ILCS 10/2-109 (West 2002)). Specifically, the District argued section 2-109 provided immunity to local public entities when the entity's employee could not be held liable for the act or omission causing the alleged injury. Under our holding in Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill.2d 12, 230 Ill.Dec. 596, 694 N.E.2d 565 (1998), the District asserted that individual employees are not liable for retaliatory discharge. Since Trigg could not be held liable for the decision to fire Smith, the District argued it could not be held liable.

Alternatively, the District contended it would not be liable since it enjoyed discretionary immunity under the combined effect of sections 2-201 and 2-109 because section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 2002)) provides immunity to governmental employees for their acts or omissions involving discretion or determination of policy. In support of its contention that Trigg's firing of Smith was a discretionary act and a determination of policy, the District attached Trigg's affidavit.

Trigg's affidavit averred the District's drug and alcohol testing policy permits testing an employee if the District has reasonable suspicion that the employee is under the influence of drugs or alcohol. In processing the workers' compensation claim, the District received a medical record indicating Smith used marijuana every morning and evening. Smith was then asked to take a drug test. Smith's statement to his doctor, admitting daily marijuana use, indicated to Trigg that Smith came to work after smoking marijuana. Therefore, Trigg thought he had the reasonable suspicion necessary to demand a drug test.

After Smith's refusal, Trigg terminated Smith. In deciding to terminate Smith, Trigg considered several factors: public safety in light of Smith's marijuana use; the legal and financial risks to the District presented by Smith potentially operating vehicles and other equipment while under the influence; public loss of confidence in the District if Smith were to harm someone while under the influence, especially in light of the District's prior knowledge of Smith's drug use; and the deterrent effect Smith's firing would have on other District employees.

The circuit court granted the District's motion to dismiss Smith's complaint with prejudice. Smith appealed and the appellate court affirmed. 373 Ill.App.3d 626, 312 Ill.Dec. 102, 869 N.E.2d 1093. The appellate court held the District immune from suit under section 2-109 of the Tort Immunity Act (745 ILCS 10/2-109 (West 2002)). In particular, the appellate court determined that since retaliatory discharge claims can only lie against employers and not supervisory employees, public entities can never be liable for retaliatory discharge because public entities cannot be liable when its employees are not liable. 373 Ill.App.3d at 629, 312 Ill.Dec. 102, 869 N.E.2d 1093.

II. ANALYSIS

This case requires us to address whether public entities enjoy immunity under the Tort Immunity Act against claims of retaliatory discharge for exercising workers' compensation rights. The existence and preclusive effect of tort immunity are properly raised in a section 2-619(a)(9) motion to dismiss. Van Meter v. Darien Park District, 207 Ill.2d 359, 367, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). We review the dismissal of a complaint pursuant to section 2-619(a)(9) de novo. Glisson v. City of Marion, 188 Ill.2d 211, 220, 242 Ill.Dec. 79, 720 N.E.2d 1034 (1999). We also review construction of the Tort Immunity Act de novo. Barnett v. Zion Park District, 171 Ill.2d 378, 385, 216 Ill.Dec. 550, 665 N.E.2d 808 (1996).

We first analyze the appellate court's basis for finding the District immune. The appellate court held the District immune solely under section 2-109 relying on our holding in Buckner that only the municipal employer, and not its employees, may be liable for the tort of retaliatory discharge.

Smith agrees with the appellate court's view of Buckner that a decision to terminate an employee in retaliation for filing a workers' compensation claim belongs only to the employer, not to the supervising employee. Smith disagrees, however, with the appellate court's conclusion that Buckner thereby precludes all retaliatory discharge claims because public employers cannot be liable when their employees are not liable. Smith stresses that the specific language of section 2-109 relieves a public entity from liability only when the employee's "act or omission" caused the injury, and the employee cannot be held liable. According to Smith, Buckner actually removes section 2-109 from consideration because it establishes that the employee never "acts" in a case of retaliatory discharge.

In Buckner, we squarely addressed "whether a plaintiff may bring a retaliatory discharge action against the employee or agent of his former employer who effected the discharge on behalf of the employer." Buckner, 182 Ill.2d at 16, 230 Ill.Dec. 596, 694 N.E.2d 565. In rejecting the plaintiff's argument in Buckner that he could sue his former supervisor, we pointed out that even if an employee "devise[s] the plan" to discharge wrongfully the employee, "the discharge is still authorized by the employer." (Emphasis in original.) Buckner, 182 Ill.2d at 21, 230 Ill.Dec. 596, 694 N.E.2d 565. We further noted that the presumed motive for a discharge in retaliation for the exercise of workers' compensation rights, namely, the avoidance of paying workers' compensation benefits, inured only to the employer, not the employee carrying out the discharge. Buckner, 182 Ill.2d at 22, 230 Ill.Dec. 596, 694 N.E.2d 565. Based on these premises, we ultimately concluded that general principles of agency law "may not * * * be logically applied to the tort of retaliatory discharge," and held that "the tort of retaliatory discharge may be committed only by the employer." (Emphasis added.) Buckner, 182 Ill.2d at 22, 230 Ill.Dec. 596, 694 N.E.2d 565.

As Smith suggests, it is not the public entity's employee who causes the retaliatory discharge. Rather, it is the employer. Section 2-109 only grants immunity to a public entity from "an injury resulting from an act or omission of its employee where the employee is not liable." (Emphasis added.) 745 ILCS 10/2-109 (West 2002). Accordingly, we hold section 2-109 immunity does not apply in cases of retaliatory discharge because the employer, not the employee, ultimately causes the injury.

We foreshadowed today's decision in Boyles v. Greater Peoria Mass Transit District, 113 Ill.2d 545, 101 Ill.Dec. 847, 499 N.E.2d 435 (1986). In Boyles, we allowed a municipal employee's retaliatory discharge claim to proceed, despite the unavailability of punitive damages against her public employer, and the existence of possible alternative remedies through or against her union. We noted our concern that if a union refused to arbitrate a claim of retaliatory discharge "the plaintiff would be left without an effective remedy." Boyles, 113 Ill.2d at 555, 101 Ill.Dec. 847, 499 N.E.2d 435. We further noted that "by forcing the employee to sue her union representative [prior to bringing a wrongful discharge action], judicial attention [would be] detracted from the true focus of the complaint; that is, whether the employee was improperly discharged by her employer." Boyles, 113 Ill.2d at 555, 101 Ill.Dec. 847, 499 N.E.2d 435. We concluded:

"[U]nder appropriate circumstances, an employee may bring an action for retaliatory discharge against a local public entity employer for compensatory damages, even though the public entity is not subject to an award of punitive damages. Under our holding, only the...