Docket No. 104960.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

GREGORY A. SMITH, Appellant, v. WAUKEGAN PARK

DISTRICT, Appellee.

Opinion filed April 17, 2008.– Modified Upon Denial of Rehearing

September 22, 2008.

JUSTICE KILBRIDE delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

Plaintiff, Gregory Smith, sued his employer, the Waukegan Park

District, in the circuit court of Lake County, alleging the District

discharged him in retaliation for filing a workers’ compensation

claim. The District filed a motion to dismiss pursuant to section

2–619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS

5/2–619(a)(9) (West 2002)), claiming immunity pursuant to theLocal

Governmental and Governmental Employees Tort Immunity Act

(Tort Immunity Act) (745 ILCS 10/1–101 et seq. (West 2002)). The

circuit court granted the motion to dismiss, and the appellate court

affirmed the dismissal. 373 Ill. App. 3d 626. We allowed Smith’s
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petition for leave to appeal (210 Ill. 2d R. 315). We now reverse and

remand.

I. FACTUAL BACKGROUND

In his complaint against the District, Smith alleged he was a

seasonal park maintenance employee for the District and performed

his work satisfactorily. He suffered a work-related injury on May 8,

2002, requiring medical treatment and time off work. Smith filed a

claim under the Workers’ Compensation Act (820 ILCS 305/1 et seq.

(West 2002)).

On June 24, 2002, Smith returned to work and the District

insisted he submit to a drug and alcohol test. Smith refused. Smith

alleged the drug-test demand was “retaliatory harassment” for filing

a workers’ compensation claim. After Smith’s refusal, District

supervisor Mike Trigg informed Smith by letter that he was

terminated effective June 24 for his failure to take the drug and

alcohol test.

The District responded to the complaint by filing a motion to

dismiss under section 2–619(a)(9) of the Code. The motion asserted

immunity from Smith’s claim of retaliatory discharge under section

2–109 of the Tort Immunity Act (745 ILCS 10/2–109 (West 2002)).

Specifically, the District argued section 2–109 provided immunity to

local public entities when the entity’s employee could not be held

liable for the act or omission causing the alleged injury. Under our

holding in Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12

(1998), the District asserted that individual employees are not liable

for retaliatory discharge. Since Trigg could not be held liable for the

decision to fire Smith, the District argued it could not be held liable.

Alternatively, the District contended it would not be liable since

it enjoyed discretionary immunity under the combined effect of

sections 2–201 and 2–109 because section 2–201 of the Tort

Immunity Act (745 ILCS 10/2–201 (West 2002)) provides immunity

to governmental employees for their acts or omissions involving

discretion or determination of policy. In support of its contention that

Trigg’s firing of Smith was a discretionary act and a determination of

policy, the District attached Trigg’s affidavit.
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Trigg’s affidavit averred the District’s drug and alcohol testing

policy permits testing an employee if the District has reasonable

suspicion that the employee is under the influence of drugs or alcohol.

In processing the workers’ compensation claim, the District received

a medical record indicating Smith used marijuana every morning and

evening. Smith was then asked to take a drug test. Smith’s statement

to his doctor, admitting daily marijuana use, indicated to Trigg that

Smith came to work after smoking marijuana. Therefore, Trigg

thought he had the reasonable suspicion necessary to demand a drug

test.

After Smith’s refusal, Trigg terminated Smith. In deciding to

terminate Smith, Trigg considered several factors: public safety in

light of Smith’s marijuana use; the legal and financial risks to the

District presented by Smith potentially operating vehicles and other

equipment while under the influence; public loss of confidence in the

District if Smith were to harm someone while under the influence,

especially in light of the District’s prior knowledge of Smith’s drug

use; and the deterrent effect Smith’s firing would have on other

District employees.

The circuit court granted the District’s motion to dismiss Smith’s

complaint with prejudice. Smith appealed and the appellate court

affirmed. 373 Ill. App. 3d 626. The appellate court held the District

immune from suit under section 2–109 of the Tort Immunity Act (745

ILCS 10/2–109 (West 2002)). In particular, the appellate court

determined that since retaliatory discharge claims can only lie against

employers and not supervisory employees, public entities can never

be liable for retaliatory discharge because public entities cannot be

liable when its employees are not liable. 373 Ill. App. 3d at 629.

II. ANALYSIS

This case requires us to address whether public entities enjoy

immunity under the Tort Immunity Act against claims of retaliatory

discharge for exercising workers’ compensation rights. The existence

and preclusive effect of tort immunity are properly raised in a section

2–619(a)(9) motion to dismiss. Van Meter v. Darien Park District,

207 Ill. 2d 359, 367 (2003). We review the dismissal of a complaint

pursuant to section 2–619(a)(9) de novo. Glisson v. City of Marion,
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188 Ill. 2d 211, 220 (1999). We also review construction of the Tort

Immunity Act de novo. Barnett v. Zion Park District, 171 Ill. 2d 378,

385 (1996).

We first analyze the appellate court’s basis for finding the District

immune. The appellate court held the District immune solely under

section 2–109 relying on our holding in Buckner that only the

municipal employer, and not its employees, may be liable for the tort

of retaliatory discharge.

Smith agrees with the appellate court’s view of Buckner that a

decision to terminate an employee in retaliation for filing a workers’

compensation claim belongs only to the employer, not to the

supervising employee. Smith disagrees, however, with the appellate

court’s conclusion that Buckner thereby precludes all retaliatory

discharge claims because public employers cannot be liable when

their employees are not liable. Smith stresses that the specific

language of section 2–109 relieves a public entity from liability only

when the employee’s “act or omission” caused the injury, and the

employee cannot be held liable. According to Smith, Buckner actually

removes section 2–109 from consideration because it establishes that

the employee never “acts” in a case of retaliatory discharge.

In Buckner, we squarely addressed “whether a plaintiff may bring

a retaliatory discharge action against the employee or agent of his

former employer who effected the discharge on behalf of the

employer.” Buckner, 182 Ill. 2d at 16. In rejecting the plaintiff’s

argument in Buckner that he could sue his former supervisor, we

pointed out that even if an employee “devise[s] the plan” to discharge

wrongfully the employee, “the discharge is still authorized by the

employer.” (Emphasis in original.) Buckner, 182 Ill. 2d at 21. We

further noted that the presumed motive for a discharge in retaliation

for the exercise of workers’ compensation rights, namely, the

avoidance of paying workers’ compensation benefits, inured only to

the employer, not the employee carrying out the discharge. Buckner,

182 Ill. 2d at 22. Based on these premises, we ultimately concluded

that general principles of agency law “may not *** be logically

applied to the tort of retaliatory discharge,” and held that “the tort of

retaliatory discharge may be committed only by the employer.”

(Emphasis added.) Buckner, 182 Ill. 2d at 22.
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As Smith suggests, it is not the public entity’s employee who

causes the retaliatory discharge. Rather, it is the employer. Section

2–109 only grants immunity to a public entity from “an injury

resulting from an act or omission of its employee where the employee

is not liable.” (Emphasis added.) 745 ILCS 10/2–109 (West 2002).

Accordingly, we hold section 2–109 immunity does not apply in cases

of retaliatory discharge because the employer, not the employee,

ultimately causes the injury.

We foreshadowed today’s decision in Boyles v. Greater Peoria

Mass Transit District, 113 Ill. 2d 545 (1986). In Boyles, we allowed

a municipal employee’s retaliatory discharge claim to proceed,

despite the unavailability of punitive damages against her public

employer, and the existence of possible alternative remedies through

or against her union. We noted our concern that if a union refused to

arbitrate a claim of retaliatory discharge “the plaintiff would be left

without an effective remedy.” Boyles, 113 Ill. 2d at 555. We further

noted that “by forcing the employee to sue her union representative

[prior to bringing a wrongful discharge action], judicial attention

[would be] detracted from the true focus of the complaint; that is,

whether the employee was improperly discharged by her employer.”

Boyles, 113 Ill. 2d at 555. We concluded:

“[U]nder appropriate circumstances, an employee may

bring an action for retaliatory discharge against a local public

entity employer for compensatory damages, even though the

public entity is not subject to an award of punitive damages.

Under our holding, only the damages available are restricted;

the cause of action in tort for retaliatory discharge remains

unchanged.” Boyles, 113 Ill. 2d at 555-56.

In sum, based on our decision in Buckner, the District is not immune

from liability under section 2–109.

Next we address the District’s argument that it enjoyed

discretionary immunity under the combined effect of sections 2–201

and 2–109. Section 2–201of the Tort Immunity Act provides:

“Except as otherwise provided by Statute, a public

employee serving in a position involving the determination of

policy or the exercise of discretion is not liable for an injury

resulting from his act or omission in determining policy when
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acting in the exercise of such discretion even though abused.”

745 ILCS 10/2–201 (West 2002).

This court has recognized “[s]ection 2–201 of the Act offers the

most significant protection afforded to public employees under the

Act.” Arteman v. Clinton Community Unit School District No. 15,

198 Ill. 2d 475, 484 (2002). Additionally, section 2–109 of the Tort

Immunity Act provides: “A local public entity is not liable for an

injury resulting from an act or omission of its employee where the

employee is not liable.” 745 ILCS 10/2–109 (West 2002). Together,

sections 2–201 and 2–109 provide discretionary immunity to public

entities. See Arteman, 198 Ill. 2d at 484 (“Because ‘[a] local public

entity is not liable for an injury resulting from an act or omission of

its employee where the employee is not liable’ [citation], this broad

discretionary immunity applies to the entities themselves”); Village

of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 496

(2001) (“the discretionary immunity doctrine is codified in sections

2–109 and 2–201 of the Act, which provide that ‘a public employee

serving in a position involving the determination of policy or the

exercise of discretion [and, thereby, the local public entity,] is not

liable for an injury resulting from his act or omission in determining

policy when acting in the exercise of such discretion even though

abused’ ”).

According to the District, section 2–201 immunizes Trigg, and the

District is correspondingly immune pursuant to section 2–109.

However, as demonstrated above, this argument fails because it

incorrectly views the employee as the pertinent actor when it is the

employer who “acts” within the meaning of section 2–109 in a

retaliatory discharge.

Particularly important in this dispute, we note section 4(h) of the

Workers’ Compensation Act provides: “[i]t shall be unlawful for any

employer *** to discharge *** an employee because of the exercise

of his or her rights or remedies granted to him or her by this Act.”

(Emphasis added.) 820 ILCS 305/4(h) (West 2002). Therefore,

section 4(h) plainly prohibits a retaliatory discharge for the exercise

of workers’ compensation rights. This conclusion isfurther buttressed

by the legislature’s declaration in section 2–101(c) of the Tort

Immunity Act that “[n]othing in this Act affects the liability, if any,

of a local public entity or public employee, based on: *** [t]he
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‘Workers’ Compensation Act.’ ” 745 ILCS 10/2–101(c) (West 2002).

Without expressing an opinion on firings in general by public entities,

we declare, under established Illinois law, public entities possess no

immunized discretion to discharge employees for exercising their

workers’ compensation rights.

The District urges us to adopt the contrary reasoning of Cross v.

City of Chicago, 352 Ill. App. 3d 1 (2004). We disagree with Cross

and overrule its holding with our decision today.

The Cross court concluded discretionary immunity should apply

even when an employer discharges an employee for exercising

workers’ compensation rights. Cross largely based its holding on “the

important policy considerations embodied in the Tort Immunity Act.”

Cross, 352 Ill. App. 3d at 7. Cross determined:

“decisions by municipal employees about how to best allocate

resources and go about providing services, including the

selection of employees who will provide those services for the

benefit of the public, should not be unduly controlled by the

threat of a tort judgment.” Cross, 352 Ill. App. 3d at 7.

Cross then noted that this court cautioned against “ ‘secondguessing’ ” the “important judgment calls” involved in employment

decisions, and that a public employer should not be “ ‘more

concerned with avoiding possible litigation than with using his best

judgment to properly balance the competing interests.’ ” Cross, 352

Ill. App. 3d at 7-8, quoting West v. Kirkham, 147 Ill. 2d 1, 12 (1992).

We cannot identify what legitimate competing interests are

involved when a public entity decides to violate the clear prohibition

of another enactment of the legislature, namely, section 4(h) of the

Workers’ Compensation Act. Moreover, terminating an employee for

exercising workers’ compensation rights plainly has nothing to do

with “how to best allocate resources and go about providing services

*** for the benefit of the public.” Cross, 352 Ill. App. 3d at 7.

The District attempts to support the circuit court judgment

dismissing Smith’s complaint by contending the discharge was an act

of discretion and, thus, immunity applies. The District points out that

Smith made no challenge to Trigg’s affidavit. According to the

District, Smith admitted Trigg’s averments that he fired Smith after

considering policy implications and competing interests.
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Contrary to the District’s assertion, Smith’s purported concession

of the District’s discretionary action in firing him by his failure to

respond to Trigg’s affidavit does not constitute an adequate basis for

the dismissal of Smith’s complaint under section 2–619(a)(9).

“ ‘[S]ection 2–619(a)(9) affords a ‘means of obtaining *** a

summary disposition of issues of law or of easily proved issues of

fact, with a reservation of jury trial as to disputed questions of fact.’

[Citations.]” Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156

Ill. 2d 112, 115 (1993). Dismissal under section 2–619(a)(9) is

appropriate when an affirmative matter bars or defeats the plaintiff’s

claim. Hodge, 156 Ill. 2d at 115. “Affirmative matter” means some

kind of defense “other than a negation of the essential allegations of

the plaintiff’s cause of action.” Hodge, 156 Ill. 2d at 115. The

standard articulation of “affirmative matter” is:

“[A] type of defense that either negates an alleged cause of

action completely or refutes crucial conclusions of law or

conclusion of material fact unsupported by allegations of

specific fact contained or inferred from the complaint ***

[not] merely evidence upon which defendant expects to

contest an ultimate fact stated in the complaint.” 4 R.

Michael, Illinois Practice §41.7 at 332 (1989).

In fact, a defendant moving for dismissal under section 2–619(a)(9)

otherwise admits the legal sufficiency of the plaintiff’s cause of

action. Hodge, 156 Ill. 2d at 115.

Here, Trigg’s affidavit attempts, in part, to negate the essential

allegations of Smith’s claim of retaliatory discharge. Trigg’s affidavit

also attempted to show that Smith’s discharge was discretionary

pursuant to an established drug policy. To the contrary, Smith’s

complaint alleges he was fired for exercising workers’ compensation

rights. Smith admits that the reason given by the District for his firing

was his refusal to take a drug test. Nonetheless, Smith asserts this

reason was a pretext intended to obscure his illegal discharge in

retaliation for exercising his workers’ compensation rights.

Undoubtedly, the existence of tort immunity may be raised in a

section 2–619(a)(9) motion to dismiss. Van Meter, 207 Ill. 2d at 367.

Nonetheless, to invoke immunity through a section 2–619(a)(9)

motion, the District must admit the legal sufficiency of Smith’s

complaint alleging the District discharged Smith in retaliation for the
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exercise of his workers’ compensation rights, but show that the

legislature granted immunity for retaliatory discharge. Instead, the

District highlights a factual dispute surrounding the motivation for

Smith’s firing.

Since the District possesses no immunized discretion to discharge

employees for exercising workers’ compensation rights, the disputed

basis for the District’s discharge of Smith remains a disputed issue of

fact. Tort immunity in this case depends on the resolution of that

disputed question of fact. See Hodge, 156 Ill. 2d at 115. Therefore,

Smith’s failure to respond to Trigg’s affidavit is not fatal because the

affidavit does not constitute an “affirmative matter” under section

2–619(a)(9). See Hodge, 156 Ill. 2d at 115 (holding an “affirmative

matter” means a defense other than negation of the plaintiff’s

essential allegations).

 We conclude the circuit court erred in granting the District’s

section 2–619(a)(9) motion to dismiss, and the appellate court erred

in affirming the dismissal. Accordingly, we reverse and remand for

further proceedings consistent with this opinion.

III. CONCLUSION

We hold section 2–109 provides public entities no immunity for

retaliatory discharge based on the exercise of workers’ compensation

rights. We reverse the judgments of the appellate and circuit courts

and remand to the circuit court for further proceedings in accord with

this opinion.

Reversed and remanded.