In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-4318

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.

____________

ARGUED MAY 31, 2005—DECIDED JANUARY 5, 2006

____________

Before EASTERBROOK,ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. From March 2002 to June 2003, J.

Richard Tanner worked as an Asset Manager in the Atlanta

office of Jupiter Realty Corporation (Jupiter), a Chicagobased 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.
2 No. 04-4318

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.
No. 04-4318 3

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
4 No. 04-4318

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 a district court’s application of choice of law

principles de novo. Gramercy Mills, Inc. v. Wolens, 63 F.3d

569, 572 (7th Cir. 1995).

When a district court sits in diversity, it must apply

the choice of law principles of the forum state to determine which state’s substantive law governs the proceeding. French v. Beatrice Foods Co., 854 F.2d 964, 966 (7th

Cir. 1988) (citing Klaxon Co. v. Stentor Electric Mfg. Co.,

313 U.S. 487, 496 (1941)). In this case, as the district

court did, we look to Illinois’s choice of law rules. For tort

actions, Illinois instructs the court to ascertain the forum

with the “most significant relationship” to the case. Esser v.

McIntyre, 661 N.E.2d 1138, 1141 (Ill. 1996). “Under this

test, the law of the place of injury controls unless Illinois

has a more significant relationship with the occurrence and

with the parties.” Id. Four factors are supposed to guide the
No. 04-4318 5

court’s decision: “(1) where the injury occurred; (2) where

the injury-causing conduct occurred; (3) the domicile of the

parties; and (4) where the relationship of the parties is

centered.” Id. The court evaluates these factors “in light of

the policies underlying the laws of those jurisdictions.” Id.

(internal citations omitted).

Looking at these factors, we agree with the district

court that a strong case can be made for applying Georgia

law. Tanner was employed in Jupiter’s Atlanta office

and was fired from that office on May 27, 2003, when

Jupiter informed him that it was closing the office. If

instead we chose to look at the place where Moyer told

him to pack up and leave, it would be either Georgia or

possibly South Carolina during the drive back to the

office. Next, we look at where the conduct that caused the

injury occurred. See, e.g., French, 854 F.2d at 966 (considering the location of the actual loss of the job, the cause

of the termination, and the events leading up to the termination). Tanner learned that he was going to lose his job on

May 27, 2003, when Moyer told him that the Atlanta office

would be closing. This conversation took place in Georgia.

Even if we accept Tanner’s assertion that his discharge

occurred on June 25, 2003, the conduct leading to the

discharge did not take place in Illinois. Tanner sent his

June 13, 2003, email to Moyer in Georgia and his conversation with Moyer on the way to Greenville occurred in either

Georgia or South Carolina. As is often the case, the domicile

factor is not very helpful: Tanner was domiciled in Georgia,

and Jupiter in Illinois. Last, we consider where the relationship of the parties is centered. Tanner’s employment

relationship with Jupiter was located primarily in Atlanta.

Although the Chicago office directed his employment

activities and the decision to close the Atlanta office was

made in Chicago, Georgia was the location of the alleged

injuries and where Tanner worked for the duration of his

tenure with Jupiter.
6 No. 04-4318

On the assumption that Georgia law applies, Tanner’s

case is doomed at the outset. Georgia does not recognize the

tort of retaliatory discharge. See Reilly v. Alcan Aluminum

Corp., 528 S.E.2d 238, 240 (Ga. 2000) (“[T]he inability of an

at-will employee to sue in tort for wrongful discharge is a

fundamental statutory rule governing employer-employee

relations in Georgia.”); see also Evans v. Bibb Co., 342

S.E.2d 484, 486 (Ga. Ct. App. 1986) (declining to create a

common law wrongful discharge claim based on a plaintiff’s

filing of a worker’s compensation claim).

We recognize, however, that several of the factors give

some support to a finding that Illinois law applies. Jupiter

was an Illinois corporation with its principal place of

business in Illinois, and Tanner argues that the firm

directed everything from Illinois. Even if we were to find

that Illinois law applies, however, Tanner still loses. First,

we think it unlikely that Illinois would recognize a cause of

action for retaliatory discharge on these facts. Three years

after first recognizing the tort of retaliatory discharge, the

Illinois Supreme Court explained that to be actionable, the

“matter must strike at the heart of a citizen’s social rights,

duties, and responsibilities before the tort will be allowed.”

Palmateer v. International Harvester Co., 421 N.E.2d 876,

878-79 (Ill. 1981). While Illinois may recognize a cause of

action for an employee who reports corporate fraud or

mismanagement, see Johnson v. World Color Press, Inc.,

498 N.E.2d 575, 576 (Ill. App. Ct. 1986) (allowing a claim

based on a employee’s disagreement with accounting

practices to go forward), it is unlikely to do so when a close

look at the allegations shows that no corporate misconduct

has been described. Here, Jupiter’s decision to use the

Faber properties’ sale proceeds to pay down their equity

investment had no effect at all on its tax liability to the

government. It just meant that it would satisfy that liability

with a different package of dollars than the one it received

in conjunction with the sale. Nor is it readily apparent how
No. 04-4318 7

G.E. Capital could have been harmed by this arrangement.

The loan agreement expressly gave G.E. Capital the right to

request any information from Jupiter used “to evidence the

amount of income taxes” related to Jupiter’s tax liability

calculation. Given these protections, G.E. Capital (surely a

sophisticated party) easily could have demanded proof that

the amount withheld for taxes was proper.

The materials gathered for the summary judgment

motion show that Jupiter terminated Tanner on May 27,

2003, when it told him that the Atlanta office would

be closing and his portfolio was being assigned to another person. Any way one considers it, Tanner has not

shown that there are genuine issues of fact that might allow

him to prevail.

We AFFIRM the judgment of the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-5-06