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Tanner v. Jupiter Realty Corp.

January 5, 2006

J. RICHARD TANNER, PLAINTIFF-APPELLANT,
v.
JUPITER REALTY CORPORATION, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04-C-1504-James F. Holderman, Judge.

The opinion of the court was delivered by: Wood, Circuit Judge.

ARGUED MAY 31, 2005

Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges.

From March 2002 to June 2003, J. Richard Tanner worked as an Asset Manager in the Atlanta office of Jupiter Realty Corporation (Jupiter), a Chicago-based commercial real estate company. Shortly after Tanner expressed some concerns about one of the company's loans, Jupiter fired him. Believing that this action was in retaliation for his whistle-blowing, Tanner sued, invoking the federal court's diversity jurisdiction. Applying Georgia law to the claim, the district court granted summary judgment for Jupiter. We affirm.

I.

On several occasions in April and May 2003-about two months before the alleged whistle-blowing activity began-Jupiter informed Tanner that it might close its Atlanta office. On May 27, 2003, Kevin Moyer, a Vice President and the Manager of Jupiter's Atlanta office, told Tanner that the company had finalized its decision to do so. Tanner learned at the same time that he was going to lose his job as of July 25, 2003, because Jupiter planned to transfer all of Tanner's accounts to Sonya Michieli, who was about to move to Chicago from Jupiter's Denver office, which was also slated for abandonment.

Meanwhile, in June 2003, Jupiter decided to sell two properties that Tanner had been managing: 3875 Faber Place and 3955 Faber Place. G.E. Capital was the lender for those properties. Jupiter's loan agreement with G.E. Capital made special provision for taxes that had to be paid when Jupiter sold property to a third party. The critical language in the agreement required Jupiter to repay its loan to G.E. Capital according to the following rules:

[G.E. Capital receives] 100% of the net sales or net refinancing proceeds for such Project received by Borrower less an amount equal to the assumed income taxes on any gain, if any, payable by Borrower as a result of the sale or refinancing triggering this release; provided, that Borrower shall provide to Lender upon request all information reasonably requested by Lender to evidence the amount of income taxes described above.

On June 3, Jeremy Glendenning, Jupiter's Portfolio Manager, sent Moyer an email that included a worksheet reflecting Jupiter's plans to use the retained amount from the proceeds of the sales of the Faber properties to pay down its equity investment in the properties rather than to pay the taxes. Moyer forwarded the email to Tanner, who became concerned with Jupiter's proposed use of the money.

Tanner later stated that he was also concerned that Jupiter had overstated its tax liability, apparently as a way of holding back more money from G.E. Capital than it should have done.

This concern prompted Tanner to send an email to Moyer on June 13, 2003, in which he expressed his concern about several issues related to Jupiter's responsibilities to G.E. Capital and his desire to speak to Moyer about it when Tanner returned from vacation on June 23, 2003. The opportunity to talk to Moyer arose almost immediately. On June 25, 2003, Moyer and Tanner traveled from Atlanta to Greenville, South Carolina, for a meeting with Jupiter employees from Chicago, including Jerry Ong, one of Jupiter's Executive Vice Presidents. The purpose of the meeting was to facilitate the transfer of Tanner's portfolio to Michieli. On the way to the meeting, Tanner explained to Moyer what concerned him about the computation of the tax sale gains on the Faber properties. It is fair to say that the conversation did not have the effect Tanner was hoping for. Once in Greenville, Moyer spoke with Ong about his conversation with Tanner. The two men inferred that Tanner was trying to extort money from Jupiter and that he was a threat to the company. They decided that Tanner should not be allowed to return to Jupiter's office. Nonetheless, they also decided to pay him through July 25, 2003, and give him one week of severance pay. On the car ride back, Moyer gave Tanner the bad news. Evidently prepared for it, Tanner responded that he had already packed his belongings from his office.

On February 25, 2004, Tanner filed a complaint against Jupiter alleging retaliatory discharge, invoking the federal court's diversity jurisdiction. On November 24, 2004, the district court granted Jupiter's motion for summary judgment. Applying Illinois's choice of law rules, the court concluded that the substantive law of Georgia applied to Tanner's claim. That made the decision to rule for Jupiter easy, since Georgia does not recognize the common law tort of retaliatory discharge. Alternatively, the court found that even if Illinois law applied, it would still grant summary judgment for Jupiter because Jupiter had decided to terminate Tanner's employment well before Tanner made known his concerns about Jupiter's alleged wrongdoing, and the latter events had no effect on Tanner's final day of work or pay.

II.

We review a district court's grant of summary judgment de novo. Copeland v. County of Macon, 403 F.3d 929, 932 (7th Cir. 2005). Summary judgment is proper if "there is no genuine issue as to any material fact and [ ] the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In conducting our review, we take all facts in the light most favorable to the non-moving party. Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005). We review ...


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