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HICKS v. RESOLUTION TRUST CORP.

March 15, 1990

JOHN HICKS, Plaintiff,
v.
RESOLUTION TRUST CORPORATION as Receiver for CLYDE FEDERAL SAVINGS and LOAN ASSOCIATION, SYLVIA MEIDEMA, ROBERT ROPA, VALERIAN MUSSELMAN, NICHOLAS LASH, ERNEST MELICHAR, ERWIN KUCERA, STEVEN KUROSKI, and LYDIA FRANZ, Defendants


George W. Lindberg, United States District Judge.


The opinion of the court was delivered by: LINDBERG

GEORGE W. LINDBERG, UNITED STATES DISTRICT JUDGE

 This matter comes before the court upon motions by the defendants to dismiss plaintiff's third amended complaint for failure to state a cause of action. Defendants' motions to dismiss are granted.

 Plaintiff was fired as an employee of defendant, Clyde Federal Savings and Loan (Clyde) on April 24, 1987. As part of his duties for defendant, plaintiff was the officer in charge of Clyde's compliance with the federal Community Reinvestment Act (CRA). 12 USCA ยง 2901, et seq. (1989). Plaintiff alleged that Clyde was in violation of the CRA and plaintiff's attempts to inform defendant of its noncompliance with the CRA and his attempts to bring defendant into compliance with the CRA led to defendant's firing of plaintiff.

 On October 1, 1987, plaintiff filed a three count complaint naming defendants Clyde Federal Savings and Loan Association, Sylvia Meidema, Robert Ropa, Valerian Musselman, Nicholas Lash, Ernest Melichar, Erwin Kucera, Steven Kuroski, and Lydia Franz. Count I of the complaint alleged that Clyde and Meidema fired plaintiff without cause in violation of an alleged employment contract. Count II of plaintiff's complaint alleged that Clyde and Meidema fired him in retaliation for his complaints that Clyde's advertising policy violated the CRA. Count III alleged that Meidema and the other board members Ropa, Musselman, Lash, Melichar, Kucera, Kuroski, and Franz, conspired to breach plaintiff's alleged employment contract and that their actions amounted to tortious interference with the contract.

 Defendants filed a motion to dismiss all three counts of the complaint. In a published opinion, Judge Bua granted defendants' motion to dismiss all three counts except as to Count II which Judge Bua allowed to stand as against Clyde ruling that it sufficiently stated a cause of action for the tort of retaliatory discharge. Hicks v. Clyde Federal Savings and Loan, 696 F. Supp. 387 (N.D.Ill. 1988). Defendant Meidema was dismissed from Count II based upon Judge Bua's determination that the tort of retaliatory discharge in Illinois does not lie against the supervisor or other employee, but only against the employer. 696 F. Supp. 387. Counts I and III were dismissed based on Judge Bua's determination that no contract of employment existed between plaintiff and defendant and that plaintiff as an employee at-will could be dismissed without cause. 696 F. Supp. 387.

 On May 8, 1989, plaintiff filed a second amended complaint which detailed the specific circumstances surrounding the alleged noncompliance with the CRA by defendant Clyde and plaintiff's attempts to inform defendant of this noncompliance.

 In November of 1989, this was one of the cases transferred to this court to create a civil docket.

 Defendant Clyde filed a motion to dismiss plaintiff's third amended complaint for failure to state a cause of action for retaliatory discharge. Defendant Meidema also filed a motion to dismiss for failure to state a cause of action for retaliatory discharge. The other defendants: Ropa, Musselman, Lash, Melichar, Kuroski and Franz, filed a motion to dismiss plaintiff's third amended complaint for failure to state a cause of action for retaliatory discharge and for failure to name them as defendants within the statute of limitations. Defendant Kucera did not join the motion to dismiss. The court has received a suggestion that his death occurred on June 2, 1989.

 The Resolution Trust Corporation, as receiver for Clyde, was substituted as defendant on February 26, 1990. (This defendant will continue to be referred to as Clyde throughout the opinion.)

 Defendants' motions to dismiss seek this court's reconsideration of a prior ruling which denied similar motions to dismiss which raised the same arguments. While the doctrine of the law of the case suggests that the court should refrain from reconsidering a prior ruling in the same case, the law of the case is a discretionary doctrine and is not designed to perpetuate error. Champaign-Urbana News Agency, Inc. v. J.L. Cummins News Co., Inc., 632 F.2d 680 (7th Cir 1980). Whereas here, the court is convinced that the prior ruling was clearly erroneous, the court should not hesitate to correct error. 632 F.2d 680.

 The issue which the court in its discretion chooses to reconsider is whether plaintiff's claim that he was fired for reporting defendant Clyde's noncompliance with the CRA and for his attempts to bring defendant within compliance of the CRA, states a cause of action for retaliatory discharge in Illinois.

 An employer commits the tort of retaliatory discharge in Illinois when the employee is discharged in retaliation for the employee's activities and the discharge of the employee for such activities contravenes a clearly mandated public policy which affects the citizens of the State of Illinois collectively. Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876, 52 Ill. Dec. 13 (1981). What constitutes a clearly mandated public policy of the citizens of the State of Illinois collectively is to be found in the ...


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