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Morton v. Hartigan





Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.


Plaintiff, Robert B. Morton, a former special assistant Attorney General, brought an action against the Attorney General of Illinois, and three other officials at the Attorney General's office in their individual capacities, seeking compensatory and punitive damages for the torts of retaliatory discharge, defamation and invasion of privacy. The circuit court entered an order dismissing certain counts of the complaint with respect to certain defendants. Subsequently, the defendants filed a motion for judgment on the pleadings with respect to the remaining counts, pursuant to section 2-615(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615(e)). The motion was granted and plaintiff now appeals. For the reasons set forth below, we affirm.

On April 11, 1983, the plaintiff, a recent admittee to the Illinois Bar, was assigned full time to the Welfare Litigation Division of the Illinois Attorney General's office. His immediate supervisor was James O'Connell, chief of that division. In January 1984, the plaintiff was informed that his employment as a special assistant Attorney General would be terminated at the end of that month because of his unprofessional conduct on the job.

Thereafter, the plaintiff filed a three-count complaint against Neil F. Hartigan, the Attorney General of Illinois; Charles Murdock, the deputy Attorney General; Paul Biebel, Jr., the first assistant Attorney General; and James O'Connell, the chief of the Welfare Litigation Division of the Attorney General's office. Count I of the complaint was premised on a retaliatory-discharge theory and was directed against all four defendants. While plaintiff conceded in exhibits attached to his complaint that he had an argument with a female associate, directed "indiscreet" comments towards his supervisor, and experienced an "unseemly loss of temper" on the job, he nevertheless maintained in count I of his complaint that he was discharged in retaliation for his activities during his tenure at the Attorney General's office.

The first of these activities set forth in count I involved the settlement of a lawsuit filed by his office: People ex rel. Treasurer of Illinois v. First National Bank of Chicago, No. 81 L 5153, circuit court of Cook County. In that case, the defendant banks were charged with wrongfully negotiating State public-aid warrants on which payee signature endorsements had been forged. Plaintiff was assigned to the matter along with two other assistant Attorneys General. At the order of defendant O'Connell, the case was settled for $77,000, approximately $4,300 more than the face value of the warrants. Plaintiff alleged that the settlement was improperly reached and deprived the State of an additional recovery of more than $100,000. As a result, plaintiff prepared a motion and memorandum to set aside the settlement, and gave it to Hartigan.

The second activity described in count I centered around an unsolicited memorandum entitled "Proposed Legislative and Judicial Initiatives" prepared by the plaintiff and submitted to defendant Hartigan. The memorandum urged the Attorney General to make various legislative changes as well as channel the office's litigation manpower and resources into certain areas designated by the plaintiff. The memorandum also proposed remedial measures to be enforced within the Attorney General's office.

The third incident alleged by plaintiff in count I pertained to defendant O'Connell's withdrawal of his own contributions from the State's pension fund. The complaint alleged that O'Connell, in withdrawing his contributions, violated the regulations of the State Employees' Retirement System. Plaintiff claimed he was fired in part because he told O'Connell that the withdrawal of his pension contributions was unlawful and threatened to report him.

Count II of the complaint sought recovery for defamation and was also directed against all four defendants. First, plaintiff alleged in count II that defendant Murdock wrote a letter to plaintiff in which he characterized plaintiff's conduct as "highly unprofessional." Second, plaintiff alleged that defendant Hartigan also referred to plaintiff's conduct as "unprofessional" in a telephone conversation he had with Judge (then attorney) Edward Burr, who called Hartigan on plaintiff's behalf. Plaintiff further alleged that all four defendants defamed him by speaking to one another about his conduct on the job and attributing certain derogatory remarks to him.

Count III was directed only against defendant O'Connell and alleged invasion of plaintiff's right to privacy and seclusion. Specifically, count III alleged that O'Connell searched plaintiff's office, desk, and briefcase at the Attorney General's office for memoranda and correspondence. It was further alleged that O'Connell searched the Welfare Litigation Division's word-processing system in order to obtain this information.

• 1, 2 We first address plaintiff's contention that the trial court erred in holding that his complaint failed to state a cause of action for retaliatory discharge. The tort of retaliatory discharge is a relatively new tort in Illinois. It was first recognized by our supreme court less than a decade ago in Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353. To state a valid retaliatory-discharge claim, an employee must show that his employer dismissed him in retaliation for his activities, and that the dismissal was in contravention of a clearly mandated public policy. (Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 134, 421 N.E.2d 876.) In those cases which have allowed a retaliatory-discharge action to be maintained, the party sued has been the plaintiff's employer. (See e.g., Price v. Carmack Datsun, Inc. (1985), 109 Ill.2d 65, 485 N.E.2d 359; Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill.2d 502, 485 N.E.2d 372; Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 421 N.E.2d 876; Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353.) Here, however, plaintiff is not bringing suit against his employer, the State of Illinois, but rather is suing his supervisors. Our research has revealed no Illinois case which has held that anyone other than an individual's employer is a proper party defendant in a retaliatory-discharge action.

Plaintiff, in arguing that a retaliatory-discharge action may be brought against his supervisors, cites Zurek v. Hasten (N.D. Ill. 1982), 553 F. Supp. 745, which notes that while Illinois law does not expressly hold that supervisors may be sued individually in a retaliatory-discharge claim, the possibility has not been foreclosed. The Zurek court, however, cites no authority for this proposition. The one decision relied on by that court, Rozier v. St. Mary's Hospital (1980), 88 Ill. App.3d 994, 411 N.E.2d 50, is not dispositive of this point. In Rozier, plaintiff alleged that she was dismissed from her job at a hospital in retaliation for reporting incidents which occurred there to a local newspaper. The Rozier court dismissed the plaintiff's retaliatory-discharge claim because it found there were legitimate reasons for her termination, and it never reached the issue of whether the individual supervisors named as defendants were proper parties.

Moreover, the Zurek opinion is not binding on this court, and we further find it unpersuasive given our supreme court's recent admonition against expanding the retaliatory-discharge tort in Barr v. Kelso-Burnett Co. (1985), 106 Ill.2d 520, 478 N.E.2d 1354. In Barr, the court stated:

"[T]his court has not, by its Palmateer and Kelsay decisions, `rejected a narrow interpretation of the retaliatory discharge tort' and does not `strongly support' the expansion of the tort. The common law doctrine that an employer may discharge an employee-at-will for any reason or for no reason is still the law in Illinois, except for when the discharge violates a clearly mandated public policy." (106 Ill.2d 520, 525, 478 N.E.2d 1354, citing Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 128-30, 421 N.E.2d 353.)

In accordance with this admonishment, we refuse to expand the retaliatory-discharge tort in the manner now urged by plaintiff. As such, the only proper party defendant in the case of a special assistant ...

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