by their employers for participating in the filing of a lawsuit against the employer, either by themselves or fellow employees. The cases hold that retaliation against a government employee for filing a lawsuit may be prohibited--by the First Amendment's protection of the rights of free speech and to petition for the redress of grievances, not by a separate right of access to the courts. Zorzi, 30 F.3d at 896.
The situation presented in the Altman line of cases is not identical to that in Pickering v. Board of Educ., 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), and Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983): in Pickering and Connick the retaliation was for the employee's speech against the employer, whereas in Altman -type cases (as here) it is for the employee's participation in the filing of litigation against the employer. Nevertheless, the Seventh Circuit has imposed the requirement that, in order to recover in Altman -type cases, a plaintiff employee must show that the lawsuit that triggered the adverse employment action concerned a matter of public interest, not merely the personal grievances of the employee--a "public concern" requirement that is drawn directly from Pickering and Connick. That is because Altman and its progeny take guidance from NAACP v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963), and related Supreme Court cases which hold that association in order to seek judicial redress of grievances is a form political expression. See, e.g., Button, 371 U.S. at 429 ("In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means of achieving the lawful objectives of equality of treatment by all government . . . for the members of the Negro community in this country. It is thus a form of political expression.") (quoted in Altman, 734 F.2d at 1244 n.10). Because the Pickering/Connick test governs actions for retaliation for an employee's speech, and because the kind of association in furtherance of litigation protected by the First Amendment is a type of expression or speech, the Seventh Circuit applies the Pickering/Connick requirements to claims of retaliation for involvement in a lawsuit.
The Pickering/Connick standard requires that the employee's speech be about a matter of public concern to be protected by the First Amendment. Likewise, before an employee can claim that the First Amendment prohibited his or her firing for associating with counsel in order to pursue a lawsuit, the employee must show that the subject of the lawsuit was a matter of public concern. Zorzi, 30 F.3d at 896 ("If a public employee is retaliated against for filing a lawsuit, the public employee has no First Amendment claim unless the lawsuit involves a matter of public concern.").
The allegations of Milazzo's complaint fail in this regard. She alleges that she "consulted with an attorney about her pending demotion and her available legal recourse." Compl. P 21. This allegation clearly establishes that Milazzo's reason for going to the attorney was "to advance her career, not promote a cause." Yatvin v. Madison Metro. Sch. Dist., 840 F.2d at 419. Although Milazzo also alleges that the defendants intended to deter "other similarly situated employees from consulting with counsel" by firing her, Compl. P 44, there are no allegations that would indicate that any "similarly situated employees" were in a position to sue on a matter of public concern, either. Nor does Milazzo allege that she and other employees had been associating, either with attorneys or each other, for the purpose of bringing the political sponsorship policies of Judge O'Connell to public attention.
In short, there is no basis in the complaint from which to infer that Milazzo's consultation with an attorney involved any public concerns. Accordingly, we dismiss Count III of the complaint.
Count IV: State Law Claim for Retaliatory Discharge
Milazzo's last claim is a state law claim for retaliatory discharge under Illinois law. A plaintiff may have a tort cause of action for retaliatory discharge under Illinois law if the employer has discharged the employee in retaliation for the employee's activities, and the discharge was "in contravention of a clearly mandated public policy." Palmateer v. International Harvester Co., 85 Ill. 2d 124, 134, 421 N.E.2d 876, 881, 52 Ill. Dec. 13 (1981). The difficulty, of course, lies in determining whether the discharge violated a clearly mandated public policy.
Although a public policy that will support a claim for retaliatory discharge has been broadly defined as those matters that "strike at the heart of a citizen's social rights, duties, and responsibilities," id., 85 Ill. 2d at 130, 421 N.E.2d at 878-79, in practice recent Illinois cases have limited the retaliatory discharge cause of action to two situations, retaliation for filing a worker's compensation claim and retaliation for reporting illegal conduct. See Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353, 23 Ill. Dec. 559 (1978) (establishing workers' compensation exception); Palmateer, 85 Ill. 2d 124, 421 N.E.2d 876, 52 Ill. Dec. 13 (establishing criminal investigation/whistle-blowing exception).
"When asked to further expand the scope of the tort action beyond Workers' Compensation and "whistle-blower" related discharges, however, our supreme court has drawn the line and denied plaintiffs' retaliatory discharge causes of action. Likewise, our appellate court has refused to countenance an expansion of the tort by denying claims of retaliatory discharge brought on grounds outside of those approved in Kelsay and Palmateer." Mitchell v. Deal, 241 Ill. App. 3d 331, 333-34, 609 N.E.2d 378, 379, 182 Ill. Dec. 75 (3d Dist. 1993) (collecting cases) (citations omitted).
When we decide claims brought under state law pursuant to our supplemental jurisdiction, 28 U.S.C. § 1367, we apply state law to those claims. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Thus, even if we agreed completely with Milazzo's argument that a public policy exception to the at-will rule should be recognized protecting employees who consult attorneys over legitimate grievances, we are bound to honor the determination of Illinois courts to limit such exceptions to those already identified in Kelsay and Palmateer.
Moreover, Illinois courts have found that the right of access to the courts to pursue grievances, contained in the United States and Illinois constitutions, does not support a public policy exception protecting an employee's right to confer with a lawyer regarding private disputes with the employer. See Paris v. Cherry Payment Sys., Inc., 265 Ill. App. 3d 383, 385, 638 N.E.2d 351, 353-54, 202 Ill. Dec. 705 (1st Dist. 1994); Abrams v. Echlin Corp., 174 Ill. App. 3d 434, 440-42, 528 N.E.2d 429 at 433, 123 Ill. Dec. 884 (1st Dist. 1988). Both of these cases cite with approval Kavanagh v. KLM Royal Dutch Airlines, 566 F. Supp. 242, 244 (N.D. Ill. 1983), in which Judge Leighton found that a public policy exception protecting employees who consult attorneys should not be recognized, because doing so would to greatly refashion the balance of power that currently exists in Illinois' law of employment at will. Without commenting on the merit of that balance of power, we generally agree with this statement. We further find that there are no legal principles that would support the notion that a purely private employment dispute suddenly becomes a matter of "public policy" merely because the employee has retained counsel. For all of these reasons, we grant the defendants' motion to dismiss Count IV of Milazzo's complaint.
The final argument to be addressed is the defendants' contention that they are entitled to qualified immunity from suit. Government officials sued in their individual capacities are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). When faced with a motion that includes arguments on both the substance of the plaintiff's claims and qualified immunity, a court should first address those arguments directed to substance. See Siegert v. Gilley, 500 U.S. 226, 232, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991) (initial inquiry in qualified immunity determinations is "whether the plaintiff has asserted a violation of a constitutional right at all"). Once the court has determined that a viable constitutional claim has been made, it examines the applicability of qualified immunity on that claim. Id.
We have conducted this threshold inquiry, see supra, and have determined that only one of the four claims states a violation of a constitutional right. Milazzo's claim that she was fired because of her political affiliations in violation of her First Amendment rights (Count II) must be allowed to proceed further, as it is unclear from the allegations of the complaint whether or not she held a confidential or policy-making position. That same dearth of the facts necessary to determine the ultimate viability of Count II also precludes us from holding that the defendants have qualified immunity on this claim. At this point, we simply do not have sufficient information to conclude that any reasonable government official would have believed that Milazzo held a position for which political loyalty was required. See Kolman v. Sheahan, 31 F.3d 429, 434 (7th Cir. 1994) ("even a qualified immunity inquiry cannot take place until the facts about [the plaintiff's position] and the plaintiff['s] roles . . . are put on the table"). Accordingly, we deny the defendants' request for a finding of qualified immunity at this time.
For the foregoing reasons, we grant the defendants' motion to dismiss as to Counts I, III and IV of the plaintiff's complaint, and deny the motion as to Count II. A status hearing in this case is set for May 10, 1996 at 9:30 a.m.
United States District Judge
April 26, 1996