Smith v. Waukegan Park Dist.

• Decision Date: 06 June 2007
• Docket Number: No. 2-05-0628.,2-05-0628.
• Citation: Smith v. Waukegan Park Dist., 869 N.E.2d 1093, 373 Ill.App.3d 626 (Ill. App. 2007)
• Parties: Gregory A. SMITH, Plaintiff-Appellant, v. The WAUKEGAN PARK DISTRICT, Defendant-Appellee.
• Court: Appellate Court of Illinois

869 N.E.2d 1093

Gregory A. SMITH, Plaintiff-Appellant, v. The WAUKEGAN PARK DISTRICT, Defendant-Appellee.

No. 2-05-0628.

Appellate Court of Illinois, Second District.

June 6, 2007.

Richard D. Grossman, Law Offices of Richard D. Grossman, Chicago, for Gregory A. Smith.

Debrai G. Haile, Gregory R. James, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Chicago, for Waukegan Park District.

Justice ZENOFF delivered the opinion of the court:

Plaintiff, Gregory A. Smith, sued defendant, the Waukegan Park District, for retaliatory discharge. The trial court dismissed the complaint (see 735 ILCS 5/2-619(a)(9) (West 2002)), holding that defendant was immune under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 2002)). Plaintiff appeals. We affirm.

Plaintiff's complaint alleged as follows. Plaintiff, a seasonal park maintenance worker, was injured on the job and filed a claim for workers' compensation benefits (see 820 ILCS 305/1 et seq. (West 2002)). When plaintiff was released for work, defendant required him to take a drug/alcohol test. Plaintiff refused because he believed the demand was retaliatory harassment for filing his claim for workers' compensation benefits. Soon afterward, defendant fired plaintiff, ostensibly for refusing to take the drug/alcohol test, but in reality for filing a workers' compensation claim.

Defendant moved to dismiss the complaint. It relied on section 2-201 of the Act, which states, "Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused" (745 ILCS 10/2-201 (West 2002)), and on section 2-109 of the Act, which states, "A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable" (745 ILCS 10/2-109 (West 2002)). Defendant contended that, because firing plaintiff was both a policy determination and a discretionary act (see Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill.2d 335, 341, 230 Ill.Dec. 11, 692 N.E.2d 1177 (1998)), Michael Trigg, the employee who fired plaintiff, was immune under section 2-201, making defendant immune under section 2-109.

Defendant's motion attached an affidavit from Trigg, defendant's superintendent of parks, stating as follows. Trigg was responsible for deciding whether to terminate or discipline employees who worked in the park maintenance department. Defendant's drug and alcohol policy allowed testing an employee if there was a reasonable suspicion that he or she was under the influence. After learning that plaintiff had admitted that he used marijuana every morning and every evening, Trigg asked plaintiff to take a drug test. Plaintiff refused, so Trigg fired him. In deciding to do so, Trigg considered the public safety; the legal and financial risks arising from retaining plaintiff; the public's confidence in defendant; and the precedent that firing plaintiff would set for other employees.

In response to the motion to dismiss, plaintiff argued first that, although section 2-109 of the Act protects local public entities from vicarious liability for their employees' torts, it does not protect them from liability for their own torts. Thus, he maintained, because only employers and not employees can be liable for retaliatory discharge (Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill.2d 12, 13, 230 Ill.Dec. 596, 694 N.E.2d 565 (1998)), sections 2-109 and 2-201 of the Act did not affect his claim. Plaintiff argued second that, even if the Act applied, dismissing the complaint would be premature because the court could not yet decide whether Trigg's firing of plaintiff was a discretionary policy determination.

In reply, defendant again argued that, because Trigg was immune under section 2-201, defendant was immune under section 2-109. Defendant contended that Trigg's unrebutted affidavit established as a matter of law that, in firing plaintiff, he had determined policy and exercised discretion. Defendant argued alternatively that it was absolutely immune because Buckner held that an employee cannot be liable for retaliatory discharge and section 2-109 states that a local public entity is not liable if its employee is not liable.

The trial court dismissed the complaint without prejudice. Plaintiff appealed, but we dismissed the appeal because the dismissal was not a final order. Smith v. Waukegan Park District, No. 2-03-1020, 348 Ill.App.3d 1101, 311 Ill.Dec. 444, 868 N.E.2d 1105 (2004) (unpublished order under Supreme Court Rule 23). The trial court then dismissed the complaint with prejudice, and plaintiff timely appealed.

On appeal, plaintiff contends that the Act does not immunize local public entities from liability for retaliatory discharge. He argues that Buckner cannot be read to imply such a broad rule and he maintains that Boyles v. Greater Peoria Mass Transit District, 113 Ill.2d 545, 101 Ill.Dec. 847, 499 N.E.2d 435 (1986), holds that local public entities are not immune from liability for retaliatory discharge.

Defendant responds first that Boyles does not hold that local public entities are never protected by the Act against claims of retaliatory discharge and that, under Cross v. City of Chicago, 352 Ill.App.3d 1, 287 Ill.Dec. 312, 815 N.E.2d 956 (2004), a First District opinion, an employer is immune if the employee who discharged the plaintiff did so in the determination of policy and the exercise of discretion.¹ Defendant responds second that, even if section 2-201 of the Act is irrelevant, section 2-109 still immunizes local public, entities from liability for the tort.

An action may be dismissed under section 2-619(a)(9) of the Code of Civil Procedure when it is barred by an affirmative matter that defeats the claim or avoids its legal effect. 735 ILCS 5/2-619(a)(9) (West 2004); Turner v. Fletcher, 302 Ill. App.3d 1051, 1055, 235 Ill.Dec. 959, 706 N.E.2d 514 (1999). A dismissal under section 2-619 is reviewed de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993). To decide whether defendant here is immune, we must construe the pertinent provisions of the Act. Statutory construction raises issues of law that are reviewed de novo. In re D.D., 196 Ill.2d 405, 418, 256 Ill.Dec. 870, 752 N.E.2d 1112 (2001). Our primary objective is to determine and effectuate the legislature's intent. People ex rel. Department of Public Aid v. Smith, 212 Ill.2d 389, 397, 289 Ill.Dec. 1, 818 N.E.2d 1204 (2004). This effort begins with the statutory language itself. Smith, 212 Ill.2d at 397, 289 Ill.Dec. 1, 818 N.E.2d 1204. If the language is unambiguous, we must give it effect without reading in exceptions, limitations, or conditions that the legislature did not include. People v. Rivera, 198 Ill.2d 364, 371, 261 Ill.Dec. 336, 763 N.E.2d 306 (2001); Garza v. Navistar International Transportation Corp., 172 Ill.2d 373, 378, 217 Ill.Dec. 260, 666 N.E.2d 1198 (1996).

Section 2-109 of the Act states that a local public entity is "not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 2002). This language is both unambiguous and categorical. It states that if the employee is not liable for his act—regardless of why the employee is not liable—then the local public entity is not liable. In Buckner, the supreme court ruled that an action for retaliatory discharge may be brought against only the former employer and not against the employer's agent. Buckner, 182 Ill.2d at 22, 230 Ill.Dec. 596, 694 N.E.2d 565. In fact, the Buckner court specifically held that the "employee who carries out the employer's decision to fire will not be subject to personal liability for retaliatory discharge." Buckner, 182 Ill.2d at 22, 230 Ill.Dec. 596, 694 N.E.2d 565. Although Buckner involved a private employer, nothing in the opinion limits its reach to private employers. Thus, because an employee of a local public entity is not liable for retaliatory discharge, it would follow that, under section 2-109 of the Act, the local public entity is not liable either.

However, plaintiff argues that section 2-109 of the Act is not applicable, because retaliatory discharge does not concern "an injury resulting from an act or omission of its employee." Plaintiff cites the Buckner court's statement that, "logically speaking, only `the employer' has the power to hire or fire an employee. Obviously, an agent or employee of the employer may carry out that function on the employer's behalf, but it is still the authority of the employer which is being exercised. If the discharge violated public policy, it is the employer who is rightly held liable for damages." Buckner, 182 Ill.2d at 21, 230 Ill.Dec. 596, 694 N.E.2d 565. Plaintiff argues that this statement implies that the injury in a retaliatory discharge action cannot result from the act of an employee. We disagree.

That an employer is solely liable for the tort of retaliatory discharge does not mean that a plaintiff's injury did not result from the actions of the employee, as required by 2-109. First, the Buckner court acknowledged that the agent or employee carries out the employer's decision. Buckner, 182 Ill.2d at 21, 230 Ill.Dec. 596, 694 N.E.2d 565. Second, in Vorpagel v. Maxell Corp. of America, 333 Ill.App.3d 51, 58, 266 Ill.Dec. 818, 775 N.E.2d 658 (2002), this court noted that a corporation can act only through its agents. The Vorpagel court went on to hold that the retaliatory conduct of an agent formed the basis of a cause of action for retaliatory discharge against an employer and that nothing in Buckner suggests that a principal cannot be liable for retaliatory discharge on the basis of the acts...