JOHN W. BROOKS, Plaintiff-Appellant, v. RICHARD M. DALEY and RAYMOND OROZCO, Defendants-Appellees.
No. 1-14-0392
Appellate Court of Illinois, First District, Third Division
March 18, 2015
2015 IL App (1st) 140392
JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Hyman concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County, No. 12-L-1895; the Hon. James O‘Hara, Judge, presiding.
Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Kerrie Maloney Laytin, Assistant Corporation Counsel, of counsel), for appellees.
¶ 1 Plaintiff John Brooks, the former fire commissioner of the city of Chicago, brought this suit against defendants Richard Daley, the former mayor of the city of Chicago, and Raymond Orozco, Daley‘s former chief of staff, seeking damages in connection with Brooks’ resignation as fire commissioner in 2010. Brooks alleged that ever since he was appointed as fire commissioner in 2008, Daley wanted to oust Brooks and replace him with Daley‘s preferred candidate for the position. To that end, when a fire department employee made allegations of sexual harassment against Brooks in 2010, defendants allegedly forced Brooks to resign before an official investigation could clear Brooks’ name. Brooks sought damages for intentional infliction of emotional distress and tortious interference with an advantageous business relationship.
¶ 2 The trial court dismissed Brooks’ complaint, finding that defendants were immune from suit under
¶ 3 BACKGROUND
¶ 4 The trial court dismissed Brooks’ original and amended complaints with leave to replead. At issue in this appeal is Brooks’ second amended complaint, which the trial court dismissed with prejudice.
¶ 5 According to the second amended complaint, Brooks started work with the Chicago fire department in 1980 and rose through the ranks over time to become first deputy fire commissioner. In July 2008, the position of fire commissioner became vacant. Daley, who was then mayor of Chicago, was faced with the task of recommending a new fire commissioner. The complaint alleges that, as the first deputy fire commissioner, Brooks was the expected and likely candidate to take over the position, and it would have been “politically incorrect” for Daley not to recommend Brooks for the position. Brooks was allegedly advised by Orozco that Daley wanted to recommend another individual, Robert Hoff, instead of Brooks, but Orozco convinced Daley to change his mind based upon the “severe political backlash” that would follow such a recommendation. Thus, in July 2008, Daley recommended that Brooks be appointed to the position of fire commissioner. This recommendation had to be and was approved by the city council. The complaint concedes that as fire commissioner, Brooks was an at-will employee.
¶ 6 According to the complaint, Orozco warned Brooks that he needed to watch himself and conduct himself appropriately at all times, because Daley would be looking for any possible reason to remove him and replace him with Hoff. Brooks heeded this warning and alleged that he performed his duties “in a professional and outstanding manner, never receiving any negative comments about his performance as Fire Commissioner and never providing [Daley] any basis to seek his removal.”
¶ 8 The complaint alleges that, on April 30, 2010, while the investigation was ongoing, Orozco called Brooks and demanded that Brooks meet him at Orozco‘s office. Orozco also allegedly advised Brooks to bring an undated letter of resignation with him. The meeting took place the following day. At the meeting, Brooks allegedly asked Orozco why Daley wanted him out, and Orozco cited the allegations of sexual harassment against him. Brooks stated that the allegations were untrue, but Orozco allegedly said, “I warned you that Mayor Daley would use anything to get you out of the fire commissioner office. *** It doesn‘t matter to Mayor Daley if the allegations are true, he just wants you out.” Orozco also informed Brooks that if he did not submit a letter of resignation, he would be either terminated immediately or demoted to battalion chief and then demoted, either of which would have an adverse effect on Brooks’ pension and would “destroy his name and reputation in the industry.” The complaint states that Brooks did not wish to resign, but he was coerced into doing so by Orozco. He provided an undated letter of resignation to Orozco “against his free-will.”
¶ 9 The complaint further states that on May 28, 2010, Orozco advised Brooks that his resignation from the position of fire commissioner became effective as of that date. The city publicly announced that Brooks resigned as fire commissioner amidst allegations of sexual harassment, and the resulting news coverage had an adverse effect on Brooks’ good name. On August 6, 2010, the independent investigation concluded that the sexual harassment allegations against Brooks were “completely false and fabricated.” However, according to the complaint, this exoneration could not reverse the effects of the earlier negative publicity. Brooks’ firefighting career was allegedly “destroyed” both within the Chicago fire department and with any other fire department.
¶ 10 Brooks’ complaint seeks relief in two counts. In count I, Brooks seeks damages for tortious interference with an advantageous business relationship. He alleges that he had an expectation of continued employment with the city of Chicago and defendants interfered with this expectation by forcing him to resign. Brooks further asserts that Daley did not have the authority to terminate him, obtain his forced resignation, or otherwise punish him for the allegations of sexual harassment until the investigation had concluded. Nevertheless, defendants allegedly used their apparent authority “to terminate the Plaintiff, [and] to force the resignation of the Plaintiff.” In count II, intentional infliction of emotional distress, Brooks alleges that defendants’ actions were extreme and outrageous and caused him mental anguish, emotional distress, humiliation, and pain and suffering. With regard to both counts, Brooks states that both Daley and Orozco are being sued “in [their] individual capacity.”
¶ 11 Defendants moved to dismiss Brooks’ complaint under
¶ 13
¶ 14 In their motion to dismiss, defendants invoked
¶ 15 A. The Defendants’ Positions
¶ 16 Brooks first contends that neither Daley, the mayor of Chicago, nor Orozco, Daley‘s chief of staff, qualifies as a “public employee serving in a position involving the determination of policy or the exercise of discretion” (
¶ 17 For purposes of determining immunity under section 2-201, policy determinations are decisions that require a governmental employee ” ‘to balance competing interests and to make a judgment call as to what solution will best serve each of those interests.’ ” Harinek, 181 Ill. 2d at 342 (quoting West v. Kirkham, 147 Ill. 2d 1, 11 (1992)). Discretionary acts “involve the exercise of personal deliberation and judgment in deciding whether to perform a particular act, or how and in what manner that act should be performed.” Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 395 (2000). Discretionary acts are partly defined in contrast to ministerial acts, ” ‘which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority, and without reference to the official‘s discretion as to the propriety of the act.’ ” (Emphasis in original.) Van Meter, 207 Ill. 2d at 371-72 (quoting Snyder v. Curran Township, 167 Ill. 2d 466, 474 (1995)).
¶ 18 Based upon these definitions, it is apparent from the face of the complaint that the mayor of Chicago and his chief of staff are public employees who serve in positions involving the determination of policy and the exercise of discretion, particularly in the selection or
¶ 19 It is similarly apparent that defendants engaged in policy determinations, since they were both required to make judgment calls as to how to balance competing interests. See Harinek, 181 Ill. 2d at 342 (citing West v. Kirkham, 147 Ill. 2d at 11). In deciding whom to appoint as fire commissioner, Daley had to balance his own personal preference for Hoff with the fact that Brooks was the expected successor to the position and that a Hoff appointment could trigger “severe political backlash.” As discussed in more detail below, defendants’ decision to remove Brooks also involved a policy determination, and there is ample law to support the conclusion that hiring and firing decisions are considered policy determinations within the meaning of section 2-201. See Johnson v. Mers, 279 Ill. App. 3d 372, 380 (1996); Ellis v. City of Chicago, 272 F. Supp. 2d 729, 735 (N.D. Ill. 2003); Hanania v. Loren-Maltese, 319 F. Supp. 2d 814, 835-36 (N.D. Ill. 2004).
¶ 20 Brooks contends that, for purposes of this lawsuit, defendants were not “serving in *** position[s] involving the determination of policy or the exercise of discretion” (
¶ 21 Brooks additionally argues that the conduct of the employee is what determines the nature of the position. In support, he cites Wrobel, 318 Ill. App. 3d at 395, where the court considered the tasks performed by highway maintenance workers in deciding whether they held positions
¶ 22 Brooks’ further argument that he is suing Daley and Orozco in their individual capacities is meaningless. Defendants had the ability to appoint and terminate city officials precisely by virtue of the public positions they held. The allegation that Daley wanted Brooks out as fire commissioner because he “personally” preferred to appoint another candidate does not transform an official discretionary act into one giving rise to personal liability.
¶ 23 Brooks’ final argument on this point is that our interpretation of the statute turns the qualified immunity provided under section 2-201 into sovereign immunity, creating a state where “the king can do no wrong.” We disagree. Even if the king (or, more pertinently, the mayor and his chief of staff) serves in a position involving the determination of policy or the exercise of discretion, he still would not be entitled to section 2-201 immunity unless he passes the second prong of the test, which requires consideration of the specific acts or omissions giving rise to the lawsuit. We turn now to that analysis.
¶ 24 B. The Defendants’ Actions
¶ 25 Brooks next contends that defendants’ actions in forcing his resignation cannot be considered actions resulting from both a determination of policy and an exercise of discretion, as required for immunity under section 2-201. As discussed earlier, Brooks’ complaint alleges that when Brooks was accused of sexual harassment by a coworker, the city initiated an independent investigation into the allegations, pursuant to the city‘s sexual harassment policy. Before the investigation concluded, Daley, per Orozco, informed Brooks that he would be fired if he did not submit a letter of resignation. In this way defendants coerced Brooks to resign.
¶ 26 Defendants argue that such conduct is immunized because cases establish that hiring and firing decisions are considered both determinations of policy and exercises of discretion. In Johnson, 279 Ill. App. 3d at 380, the court held that the defendant village was immune from a claim of negligent hiring, because “[t]he decision to hire or not to hire *** is an inherently discretionary act.” The court explained that a hiring decision depends on many factors which an employer must consider and evaluate, rather than being made automatically when certain specific factors are present. Id. This same logic would apply equally to a firing decision, particularly in regard to an at-will employee like Brooks.
¶ 27 Although our research has not disclosed any Illinois cases that discuss whether a decision to terminate an employee is a discretionary policy determination within the meaning of section 2-201, federal courts applying Illinois law have consistently answered this question in the affirmative.1 These federal decisions are not controlling, but their reasoning is persuasive
¶ 28 In Ellis, 272 F. Supp. 2d at 735-36, the court relied upon this court‘s holding in Johnson in finding that the city of Chicago was immune from suit for its decision to fire an employee. The court explained that firing the employee was a policy decision because “a City official was required to make a decision concerning the effect disputes between its employees had on efficiency and harmony in the workplace.” Id. at 735. It was also discretionary, since “the decision to fire someone involves balancing a set of given circumstances to arrive at an appropriate outcome; the outcome is not predetermined but left in the hands of an official to use proper judgment.” Id. at 736; see also Collins v. Board of Education of North Chicago Community Unit School District 187, 792 F. Supp. 2d 992, 999 (N.D. Ill. 2011) (board had section 2-201 immunity for decision not to hire plaintiff, since hiring and firing decisions are “inherently discretionary” (internal quotation marks omitted)).
¶ 29 Similarly, in Hanania, 319 F. Supp. 2d at 835-36, the court held that the city of Cicero was immune from liability for firing its town collector. In reaching this result, the court made clear that there is no exception to section 2-201 immunity for actions performed with “corrupt or malicious motives.” Id. at 836 (citing Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 493-94 (2001)); cf. In re Chicago Flood Litigation, 176 Ill. 2d 179, 196 (1997) (no exception to section 2-201 immunity for willful and wanton conduct).
¶ 30 Here, when Brooks was accused of sexual harassment, defendants made a decision concerning the effect that the allegations would have on efficiency and harmony in the workplace. Such a judgment call is both a policy determination and a discretionary action, since the outcome was not predetermined but left to defendants’ judgment. Ellis, 272 F. Supp. 2d at 735-36. Nor would it matter if defendants acted with “corrupt and malicious motives” in seeking to remove Brooks from his position, since the plain language of section 2-201 does not contain any exception for such actions. Hanania, 319 F. Supp. 2d at 836.
¶ 31 Brooks argues that these cases are inapposite, because he was not fired by the defendants but, rather, forced to resign. This is a distinction without a difference. Forcing an employee to resign in light of a workplace dispute, just like firing him, involves the exercise of judgment as to the potential effects that the employee‘s presence or absence will have on workplace harmony. See Ellis, 272 F. Supp. 2d at 735. The employer‘s decisionmaking process is fundamentally the same in both cases. Moreover, we note that the concepts of firing and forced resignation are intertwined in this case, because defendants allegedly forced Brooks to resign by threatening to fire him if he refused. The entire premise underlying the defendants’ threat was that they had decided to fire Brooks if he did not tender a letter of resignation to Orozco. Thus, defendants’ actions in this case are analogous to a firing decision for purposes of our section 2-201 analysis.
¶ 32 Brooks next contends that defendants should not be immune from suit because the sexual harassment policy did not grant them authority to force his resignation while the investigation was still ongoing. But in his complaint, Brooks admits that he was an at-will employee. An at-will employee can be discharged by an employer at any time and for any reason, with limited exceptions not applicable here. Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Comm‘n, 236 Ill. 2d 132, 149 (2010); Pietruszynski v. McClier Corp., Architects & Engineers, Inc., 338 Ill. App. 3d 58, 63 (2003). Furthermore, nothing in the city‘s sexual harassment policy, a copy of which is attached to Brooks’ complaint, provides that an
¶ 33 Brooks finally tries to reframe the issue by arguing that the conduct in question is not the defendants’ decision to remove him from his position, but the actual act of forcing his resignation, which he asserts is merely ministerial. This parsing of defendants’ conduct cannot withstand analysis. Even after defendants had decided to remove Brooks as fire commissioner, they still retained discretion as to how to carry out that decision; for instance, since Brooks was an at-will employee, they could have summarily fired him instead of giving him the option to resign and preserve his pension. See Interstate Scaffolding, 236 Ill. 2d at 149 (at-will employee can be discharged at any time). Brooks does not cite any ordinance or regulation which mandates a particular procedure for the mayor to remove an at-will employee. Rather, defendants would have had to determine the best way to remove Brooks based upon the competing interests at stake, such as avoiding political backlash for themselves and maintaining workplace harmony (see Ellis, 272 F. Supp. 2d at 735). Such an exercise of judgment is a policy determination within the meaning of section 2-201 (Harinek, 181 Ill. 2d at 341), regardless of defendants’ motives. Village of Bloomingdale, 196 Ill. 2d at 495-96 (allegations that defendant village‘s actions were an “abuse of official process and power” and a ” ‘corrupt and malicious misuse of power’ ” were irrelevant to question of immunity, since relevant immunity provision contained no reference to intent). To the extent that Brooks argues that the decision to force his resignation can be separated from the actual act of forcing his resignation, such that even if the former is discretionary, the latter is still ministerial, this argument lacks merit. Accepting this distinction would effectively eviscerate section 2-201, since every discretionary decision to perform an act is followed by the carrying out of that decision.
¶ 34 The cases Brooks cites do not require a contrary conclusion. In Bonnell v. Regional Board of School Trustees, 258 Ill. App. 3d 485 (1994), the purchaser of a school building sued the school board for breach of contract and tortious misrepresentation, alleging that the board concealed the presence of asbestos in the building. Id. at 486-87. The board argued that it was immune from suit, since its decision to sell the building was discretionary. Id. at 489. The court rejected this argument, finding that the act at issue was not the board‘s decision to sell the school but, rather, the act of carrying out the sale, which the board lacked discretion to do in anything but a legal manner. Id. at 490. This distinction follows from the fact that the Bonnell plaintiff was not complaining about being sold the building; he was complaining specifically about nondisclosure of a defect in the building which the board was obligated by law to disclose. In this case, there is no such distinction. Brooks’ allegations about being forced to resign cannot be separated from the decision to force him to resign, as both inherently involve the exercise of discretion.
¶ 36 CONCLUSION
¶ 37 The trial court did not err in finding that defendants were immune from suit under
¶ 38 Affirmed.