Anderson v. Village of Oswego

109 F.Supp.2d 930

Craig ANDERSON, Plaintiff, v. VILLAGE OF OSWEGO, an Illinois municipal corporation, Defendant.

No. 00 C 2226.

United States District Court, N.D. Illinois, Eastern Division.

August 9, 2000.

Stephen M. Cooper, Peter M. Storm, Cooper & Storm, Philip Joseph Piscopo, Cooper & Storm, Geneva, IL, for Plaintiff.

Michael Ives Richardson, Terrence T. Creamer, Jennifer L. Schilling, Franczek, Sullivan, Mann, Crement, Hein, Relias, P.C., Chicago, IL, for Defendant.

MEMORANDUM ORDER

BOBRICK, United States Magistrate Judge.

Before the court is the motion of defendant Village of Oswego to dismiss the complaint of plaintiff Craig Anderson.

I. BACKGROUND

Plaintiff worked for the defendant as a building and zoning administrator from 1991 to 1999. He testified pursuant to a subpoena on July 16, 1998, in a civil case brought against defendant as a result of a contract dispute. The defendant lost the case and was found liable for $1.3 million. Defendant suspended plaintiff in February of 1999 and, on March 8, 1999, terminated him. Plaintiff claims he was terminated in retaliation for his testimony in response to the subpoena. He brings a two-count complaint, alleging retaliatory discharge under the common law of Illinois, and denial of equal protection under 42 U.S.C. § 1983. Defendants now move to dismiss plaintiff's complaint.

A. Plaintiff's Allegations

In considering a motion to dismiss, we accept as true all well-pleaded factual allegations and draw all possible inferences in favor of the plaintiff. Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir.1998). As already noted, the defendant in this case was named defendant in a lawsuit. The suit alleged that defendant had refused to honor certain contractual obligations regarding payment of construction costs of water and sewer improvements. Plaintiff was subpoenaed as a witness and, on July 16, 1998, testified at trial. At trial's end, judgement was enter against the defendant in the amount of approximately $1.3 million. (Complaint, ¶¶ 5-7).

According to plaintiff, shortly after he testified, defendant accused him of wrongfully providing confidential information — an accusation which plaintiff denies. Defendant suspended plaintiff on February 9, 1999, stating that he had wrongly issued a variance and for other unstated performance issues. Finally, on March 8, 1999, plaintiff was terminated. (Complaint, ¶¶ 9-13).

Under Count I of his complaint, plaintiff alleges that defendant violated clearly mandated public policy by firing plaintiff for testifying truthfully against it. This, plaintiff claims, constitutes retaliatory discharge under the common law of Illinois. (Complaint, ¶¶ 15-17). In addition, under Count II, plaintiff claims defendant's actions violated the equal protection clause of the Fourteenth Amendment, wrongfully treating him disparately as a "class of one." (Complaint, ¶¶ 20-24).

B. Defendant's Arguments

Defendant argues that plaintiff has not adequately alleged a claim for retaliatory discharge, because he has not alleged that he was terminated in violation of a clearly mandated public policy. Defendant also contends that plaintiff's equal protection claim must fail because he has not alleged that he was terminated based on a policy or custom of disparate treatment.

II. ANALYSIS

A complaint will not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Cook v. Winfrey, 141 F.3d 322, 327 (7th Cir. 1998). We must read the complaint liberally and accept as true the well-pleaded allegations and the inferences that may reasonably be drawn from those allegations. Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir.1999). "The issue is not whether a plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support the claims." Id.

A. Retaliatory Discharge Claim

Plaintiff brings Count I under the Illinois common law, alleging retaliatory discharge. Defendant moves to dismiss. Now it gets complicated. First, the boilerplate. An employee can state a claim for retaliatory discharge only if he can demonstrate that he was terminated for his actions, and that the termination violated a clear mandate of public policy. Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). The public policy must be found in the state's constitution, statutes or, where they are silent, in the judicial decision of the state's courts. Id. Here, plaintiff alleges he was fired for truthfully testifying against his employer, the defendant, in response to a subpoena. The issue defendant raises in its motion to dismiss is whether firing an employee for complying with a subpoena to testify against his employer amounts to a contravention of public policy. The complicated part is that the law on what public policies will support a claim is one of the murkier areas of law around.

The tort of retaliatory discharge was essentially created by the Illinois Supreme Court in Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978), where an employee was fired for filing a worker's compensation claim. In so doing, the court stated that it was "convinced that to uphold and implement this public policy [favoring the exercise of worker's compensation rights,] a cause of action should exist for retaliatory discharge." 74 Ill.2d at 181, 23 Ill.Dec. 559, 384 N.E.2d at 357. Three years later, the Illinois Supreme Court revisited the recently created tort in Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). There, the court considered a case where an employee was discharged for reporting unspecified, possible criminal conduct of a fellow employee to local law enforcement, and agreeing to aid in further investigation. Necessarily, the court considered the "public policy" aspect of its prior decision:

By recognizing the tort of retaliatory discharge, Kelsay acknowledged the common law principle that parties to a contract may not incorporate in it rights and obligations which are clearly injurious to the public. (See People ex rel. Peabody v. Chicago Gas Trust Co. (1889), 130 Ill. 268, 294, 22 N.E. 798.) This principle is expressed forcefully in cases which insist that an employer is in contempt for discharging an employee who exercises the civic right and duty of serving on a jury. (People v. Vitucci (1964), 49 Ill.App.2d 171, 172, 199 N.E.2d 78; People v. Huggins (1930), 258 Ill.App. 238, 243); see also Ill.Rev. Stat.1979, ch. 38, par 155-3 (making it a contempt of court to fire or discipline an employee for attending court when subpoenaed as a witness). But the Achilles heel of the principle lies in the definition of public policy. When a discharge contravenes public policy in any way the employer has committed a legal wrong. However, the employer retains the right to fire workers at will in cases "where no clear mandate of public policy is involved" (Leach v. Lauhoff Grain Co., (1977), 51 Ill.App.3d 1022, 1026, 9 Ill. Dec. 634, 366 N.E.2d 1145). But what constitutes clearly mandated public policy?

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. (Smith v. Board of Education (1950), 405 Ill. 143, 147, 89 N.E.2d 893.) Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen's social rights, duties, and responsibilities before the tort will be allowed.

85 Ill.2d at 130, 52 Ill.Dec. 13, 421 N.E.2d at 879. Obviously, this holding transformed the question of "what constitutes public policy" into "what constitutes a citizen's social rights, duties and responsibilities."

Twenty years after Kelsay, the court noted that there was still no answer to the issues left open in Kelsay and Palmateer, but determined that:

a review of Illinois case law reveals that retaliatory discharge actions are allowed in two settings. The first situation is where an employee is discharged for filing, or in anticipation of the filing of, a claim under the Worker's Compensation Act. (820 ILCS 305/1 et seq. (West 1992)). See Hinthorn v. Roland's of Bloomington, Inc., 119 Ill.2d 526, 116 Ill.Dec. 694, 519 N.E.2d 909 (1988); Kelsay, 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353. The second situation is when an employee is discharged in retaliation for reporting of illegal or improper conduct, otherwise known as "whistle blowing." Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981).

Jacobson v. Knepper & Moga, P.C., 185 Ill.2d 372, 377, 235 Ill.Dec. 936, 706 N.E.2d 491, 493 (1998). What is unclear is whether this effected a limitation of the tort to these two categories. The "worker's compensation" category is clear and easy to apply. The "whistleblower" category is nebulous and has been suspect from the beginning. As already noted, the criminal conduct reported in the seminal "whistleblower" case, Palmateer, is unspecified: the plaintiff in Palmateer reported that a fellow "employee might be involved in a violation of the Criminal Code of 1961" 85 Ill.2d at 127, 52 Ill.Dec. 13, 421 N.E.2d at 877. The dissent in Palmateer pointed out that the complaint in that case did "not even allege that a crime had been committed. It only allege[d] that plaintiff ... reported ... that an employee of the defendant might be involved in a violation of the criminal code and that he agreed to assist ... in gathering further information." 85 Ill.2d at 142, 52 Ill.Dec. 13, 421 N.E.2d at 884 (Ryan, J.,...