Buckner v. Atlantic Plant Maintenance, Inc.
Annotate this Case
Buckner v. Atlantic Plant Maintenance, No. 83321 (4/16/98)
Docket No. 83321--Agenda 10--January 1998.
JACK L. BUCKNER, Appellant v. ATLANTIC PLANT MAINTENANCE,
INC., et al. (James L. O'Brien, Appellee).
Opinion filed April 16, 1998.
JUSTICE BILANDIC delivered the opinion of the court:
The primary issue presented in this appeal is whether a plaintiff may bring
a retaliatory discharge action against the employee or agent who, on behalf of
the plaintiff's former employer, discharged the plaintiff in alleged violation of
public policy. We hold that the limited tort of retaliatory discharge recognized
by this court in Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978), should not be
expanded to allow claims against such parties.
FACTS
The plaintiff, Jack L. Buckner, filed a four-count complaint against
Atlantic Plant Maintenance, Inc. (Atlantic), James L. O'Brien (O'Brien),
Sedgwick James of Illinois, Inc. (Sedgwick), and Patrick J. Holden (Holden)
in the circuit court of Cook County on February 28, 1995. The plaintiff alleged
that he was periodically employed by Atlantic as a millwright at LaSalle
Nuclear Power Station on and prior to October 13, 1993. The plaintiff further
alleged that he suffered a work-related injury on September 23, 1993, while
employed by Atlantic. Counts I and II of the complaint were directed at
Atlantic and O'Brien. Count I charged that Atlantic and O'Brien terminated the
plaintiff's employment on October 23, 1993, in retaliation for the plaintiff's
"intention to pursue and his pursuit of a certain workers' compensation claim."
Count II realleged the allegations of count I and sought punitive damages from
Atlantic and O'Brien. Counts III and IV were directed against Sedgwick and
Holden. Count III charged that Sedgwick and Holden conspired with Atlantic
and O'Brien to deny the plaintiff his workers' compensation benefits by
"falsely informing plaintiff on November 3, 1993, that he would receive no
benefits because he failed to show up for light duty work at Atlantic and
`unilaterally elected to keep yourself off the job.' " Count IV sought punitive
damages from Sedgwick and Holden.
Atlantic filed an answer admitting that it had been the plaintiff's employer.
As an affirmative defense, Atlantic alleged that it had "laid off" the plaintiff as
part of a "reduction in force."
O'Brien filed a motion to dismiss the plaintiff's complaint against him
pursuant to section 2--619(a) of the Code of Civil Procedure (735 ILCS 5/2--
619(a) (West 1996)). O'Brien attached his affidavit to the motion. In that
affidavit, O'Brien averred that he was the executive vice president of
Consulting Services of Frankfort, Illinois, Inc., and that, in October 1993, he
performed consulting services for Atlantic regarding work-place safety. O'Brien
further stated that the plaintiff was not an employee of Consulting Services of
Frankfort, Illinois, Inc., and that O'Brien was not an employee of Atlantic.
Finally, O'Brien averred that he had no authority to hire or discharge
employees of Atlantic in October of 1993. Based upon this affidavit, O'Brien's
motion sought dismissal of the complaint against him on the ground that he
was not the plaintiff's employer.
The plaintiff filed a response to O'Brien's motion to dismiss, accompanied
by the affidavits of the plaintiff and his counsel. The plaintiff's affidavit stated
that O'Brien worked out of Atlantic's office at the power plant, O'Brien gave
safety lectures at the job site on behalf of Atlantic, and O'Brien, on several
occasions, drove the plaintiff from the job site to see physicians for his work-
related injury. The affidavit of the plaintiff's counsel stated that he possessed
a letter written by O'Brien to one of the plaintiff's treating physicians in which
O'Brien called himself "Safety Supervisor, Atlantic Plant Maintenance," and
requested information about the plaintiff's medical condition. On the basis of
these affidavits, the plaintiff argued that he had sufficiently alleged that O'Brien
had the authority to discharge the plaintiff on behalf of Atlantic. The plaintiff
also cited two decisions of the Second District of the appellate court which held
that a plaintiff may bring a retaliatory discharge action against a former
supervisor individually, in addition to their former employer.
O'Brien filed a reply memorandum in support of his motion to dismiss.
First, O'Brien pointed out that the conspiracy count of the plaintiff's complaint,
count III, was not directed at O'Brien and contained no prayer for relief against
O'Brien. With regard to the retaliatory discharge claim, O'Brien argued that the
plaintiff did not allege that O'Brien had been his supervisor. Further, O'Brien
argued, the First District of the appellate court had held, contrary to the Second
District, that a retaliatory discharge action may not be brought against parties
other than the plaintiff's former employer.
The trial court granted O'Brien's motion to dismiss. The court's order first
allowed the plaintiff leave to amend count III of his complaint instanter to
include O'Brien in the prayer for relief under the conspiracy theory. The order
then dismissed counts I, II and III as they pertained to O'Brien.
The plaintiff appealed to the appellate court. The appellate court, following
the precedent of the First District, held that the only proper defendant in a
retaliatory discharge action is the plaintiff's former employer, not the plaintiff's
former supervisors. The court declined to follow the contrary holdings of the
Second District. Accordingly, because the complaint did not allege that O'Brien
had been the plaintiff's employer, the appellate court affirmed the dismissal of
the retaliatory discharge claim against O'Brien. The appellate court also
affirmed the dismissal of the conspiracy claim against O'Brien. 287 Ill. App.
3d 173.
We accepted the plaintiff's petition for leave to appeal to resolve the
conflict in the appellate court on the retaliatory discharge issue. 166 Ill. 2d R.
315(a).
ANALYSIS
I. Retaliatory Discharge
We must decide whether a plaintiff may bring a retaliatory discharge action
against the employee or agent of their former employer who effected the
discharge on behalf of the employer. This court has not yet addressed this
issue. As noted, the decisions of our appellate court on this issue are
conflicting. The First District, in a line of cases beginning with Morton v.
Hartigan, 145 Ill. App. 3d 417 (1986), has held that the only proper defendant
in a retaliatory discharge action is the plaintiff's former employer. Morton, 145
Ill. App. 3d at 421-22; Balla v. Gambro, Inc., 203 Ill. App. 3d 57, 63 (1990),
rev'd on other grounds, 145 Ill. 2d 492 (1991); Motsch v. Pine Roofing Co.,
178 Ill. App. 3d 169, 176-78 (1989). The court in Morton looked to this court's
precedent which, it determined, required a narrow scope for the tort of
retaliatory discharge. The Morton court concluded that allowing a retaliatory
discharge action to be brought against a party other than the former employer
would unduly expand the tort. Morton, 145 Ill. App. 3d at 421-22; see also
Balla, 203 Ill. App. 3d at 63; Motsch, 178 Ill. App. 3d at 176-77.
The Second District of our appellate court has reached a contrary
conclusion. In Fellhauer v. City of Geneva, 190 Ill. App. 3d 592, 600-02
(1989), rev'd on other grounds, 142 Ill. 2d 495 (1991), the court declined to
follow Morton and held that an action for retaliatory discharge may be brought
against not only the plaintiff's former employer, but also the employee or agent
who performed the discharge. The Fellhauer court reasoned that, under
principles of agency law, where the acts of an agent render the principal liable,
the agent is also liable. The court further determined that holding the "active
wrongdoer" liable, in addition to the employer, for retaliatory discharge would
promote the deterrent goal of the tort. Fellhauer, 190 Ill. App. 3d at 602; see
also Bragado v. Cherry Electrical Products Corp., 191 Ill. App. 3d 136, 143
(1989) (noting the holding in Fellhauer that a retaliatory discharge action may
be brought against the agent or employee who performs the discharge, but
finding that holding factually inapplicable).
The tort of retaliatory discharge has a relatively short history in this state.
It was first recognized as a cause of action by this court in 1978 in Kelsay v.
Motorola, Inc., 74 Ill. 2d 172 (1978). The Kelsay court noted that the long-
standing general rule in this state was that an at-will employee may be
discharged by the employer at any time and for any reason. The court
determined, however, that a limited exception to this rule should be recognized
when the reason for the employee's discharge is the employee's assertion of his
or her rights under the Workmen's Compensation Act. That Act, the court
reasoned, was enacted to provide a comprehensive scheme for efficient and
expeditious remedies for injured employees. The court concluded that "[t]his
scheme would be seriously undermined if employers were permitted to abuse
their power to terminate by threatening to discharge employees for seeking
compensation under the Act." Kelsay, 74 Ill. 2d at 181-82. Accordingly, the
court held that a plaintiff who was terminated for pursuing workers'
compensation benefits could bring an action for retaliatory discharge against her
former employer.
In Palmateer v. International Harvester Co., 85 Ill. 2d 124 (1981), the
court was presented with the issue of whether the tort recognized in Kelsay
should be applied beyond the workers' compensation setting. There, the
plaintiff alleged that he was discharged by his employer because he supplied
information to law enforcement authorities that a fellow employee might be
involved in illegal activities and agreed to assist in the investigation of the
other employee. In a sharply divided decision, the court held that a retaliatory
discharge action could be brought against an employer that fires an employee
for volunteering information about possible criminal activity to law enforcement
authorities. Palmateer, 85 Ill. 2d at 133. One of the dissenters in Palmateer was
Justice Ryan, the author of the majority opinion in Kelsay. Justice Ryan wrote
that the majority's opinion in Palmateer was an unwarranted extension of the
limited cause of action recognized in Kelsay. Palmateer, 85 Ill. 2d at 136
(Ryan, J., dissenting).
This court's subsequent decision in Barr v. Kelso-Burnett Co., 106 Ill. 2d 520 (1985), reaffirmed the narrow scope of the tort recognized in Kelsay. In
Barr, the court refused to allow an action for retaliatory discharge because the
discharged plaintiffs failed to allege a violation of a clearly mandated public
policy. Barr, 106 Ill. 2d at 526. It had been argued in that case that the court's
decision in Palmateer signalled an expansion of the retaliatory discharge tort.
The Barr court soundly rejected this proposition:
"Contrary to plaintiffs' assertion, however, this court has not, by its
Palmateer and Kelsay decisions, `rejected a narrow interpretation of the
retaliatory discharge tort' and does not `strongly support' the expansion
of the tort. The common law doctrine that an employer may discharge
an employee-at-will for any reason or for no reason is still the law in
Illinois, except for when the discharge violates a clearly mandated
public policy." Barr, 106 Ill. 2d at 525.
Numerous subsequent decisions of this court have similarly maintained the
narrow scope of the retaliatory discharge cause of action. For example, in
Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 159-61 (1992), this court
declined to expand the tort to encompass a retaliatory discharge "process,"
noting that, "[d]espite the revolutionizing effect of Kelsay, the common law
doctrine that an employer may discharge an employee-at-will for any reason or
for no reason remains the law in Illinois." Likewise, in Zimmerman v. Buchheit
of Sparta, Inc., 164 Ill. 2d 29, 45 (1994), the plurality traced this court's
"guarded development and narrow construction of the tort of retaliatory
discharge" to reach the conclusion that it should not be expanded to encompass
retaliatory discrimination or demotion. See also Balla v. Gambro, Inc., 145 Ill. 2d 492, 501 (1991) (declining to extend the "limited and narrow" tort of
retaliatory discharge to allow in-house counsel to sue former employer for
retaliatory discharge); Fellhauer v. City of Geneva, 142 Ill. 2d 495, 505, 508
(1991) (noting that the tort of retaliatory discharge is a "limited and narrow
cause of action," and finding that the "compelling circumstances" necessitating
recognition of the action were not present in that case).
In this case, we are again presented with a request to expand the retaliatory
discharge cause of action. The plaintiff asks that we allow this cause of action
to be brought not only against the plaintiff's former employer, but also against
the agent or employee of the employer who carried out the discharge of the
plaintiff on the employer's behalf. Given this court's past precedent
admonishing against the expansion of this tort, we decline to expand it in the
manner proposed here by the plaintiff. The policy considerations that motivated
this court to recognize a retaliatory discharge cause of action are adequately
vindicated by allowing a cause of action against employers. Kelsay recognized
a cause of action for retaliatory discharge in order to prohibit "employers" from
abusing "their power to terminate." Kelsay, 74 Ill. 2d at 182. Subsequent
decisions of this court shaping the contours of this tort have likewise noted that
"an employer could effectively frustrate a significant public policy by using its
power of dismissal in a coercive manner." (Emphasis added.) Fellhauer, 142 Ill. 2d at 508. Thus, this court has concluded, in certain "compelling
circumstances," recognition of a cause of action for retaliatory discharge is
necessary to "vindicate the public policy underlying the employee's activity,
and to deter employer conduct inconsistent with that policy." (Emphasis added.)
Fellhauer, 142 Ill. 2d at 508; see also Hartlein, 151 Ill. 2d at 166 (stating that
Kelsay prohibits an employer from utilizing an employee's job as leverage to
condition his exercise of rights under the Workers' Compensation Act);
Hinthorn v. Roland's of Bloomington, Inc., 119 Ill. 2d 526, 529 (1988) (noting
that retaliatory discharge actions are allowed to insure that sound public policy
cannot be "frustrated by the actions of an employer" (emphasis added)).
This emphasis on tempering the power of the employer is not surprising.
Logically speaking, only "the employer" has the power to hire or fire an
employee. Obviously, an agent or employee of the employer may carry out that
function on the employer's behalf, but it is still the authority of the employer
which is being exercised. If the discharge violated public policy, it is the
employer who is rightly held liable for damages. The purpose underlying the
recognition of retaliatory discharge actions is therefore fully served by allowing
actions only against the employer.
The plaintiff contends, however, that the "deterrent effect" of the tort will
be diminished if the employee or agent who "participated" in the firing is not
also subject to liability. Imposing liability for retaliatory discharge on parties
other than the employer is not necessary. The power to discharge rests with the
employer. Subjecting the employer to liability for retaliatory discharge therefore
acts to deter discharges which violate public policy. The plaintiff suggests that
allowing other parties to be held liable is necessary because it may be those
other parties who "devise the plan" to discharge the plaintiff for an unlawful
reason. Even in the plaintiff's scenario, however, the discharge is still
authorized by the employer. Moreover, from a practical perspective, if an agent
or employee induces the employer to discharge another employee for an
unlawful reason, and the employer is held liable for retaliatory discharge as a
result, it is likely that the employer itself will act to "deter" that agent or
employee from repeating such conduct.
Limiting the potential defendants in a retaliatory discharge action to
employers is particularly appropriate in a case such as this where the alleged
unlawful reason for the termination was the plaintiff's pursuit of workers'
compensation benefits. Under the Workers' Compensation Act, workers'
compensation benefits are paid to an injured employee by the employer. See
820 ILCS 305/11 (West 1996). Presumably, the intent of an employer who
adopts a policy of firing employees for seeking workers' compensation benefits
is to avoid having to pay such benefits to employees. Accordingly, it is only
the employer who has a "motive" to fire an employee for seeking workers'
compensation benefits. The retaliatory discharge claim is therefore properly
brought against the employer.
The plaintiff also contends that allowing retaliatory discharge actions to be
brought against the agent or employee who carried out the firing is not an
expansion of the retaliatory discharge tort, but is simply the application of
general principles of agency law. We disagree. The plaintiff asserts that, under
general principles of agency law, an agent whose tortious conduct renders the
principal liable is also liable for his own tortious acts. This general rule may
not, however, be logically applied to the tort of retaliatory discharge. As
explained above, the power to hire and fire employees is ultimately possessed
only by the employer. Consequently, the tort of retaliatory discharge may be
committed only by the employer. The agent or employee who carries out the
employer's decision to fire will not be subject to personal liability for
retaliatory discharge. We therefore disagree with the plaintiff's contention that
his position in this case does not represent an expansion of the retaliatory
discharge tort.
Accordingly, we hold that the only proper defendant in a retaliatory
discharge action is the plaintiff's former employer. The plaintiff's complaint in
this case alleged that he was employed by Atlantic, not O'Brien. The trial
court's order dismissing the retaliatory discharge counts against O'Brien was
therefore correct. The appellate court decisions in Fellhauer v. City of Geneva
and Bragado v. Cherry Electrical Products Corp., to the extent they are
inconsistent with this opinion, are overruled.
II. Conspiracy
The trial court also dismissed the plaintiff's cause of action for civil
conspiracy against O'Brien. We hold that this claim was properly dismissed.
Counts III and IV of the plaintiff's complaint purport to allege a
conspiracy "to deny plaintiff his Workers' Compensation Act benefits, and to
hinder him and prevent him from pursuing his claim." As originally pled,
counts III and IV charged that defendants Sedgwick and Holden attempted to
accomplish this objective by "falsely informing plaintiff on November 3, 1993,
that he would receive no benefits because he failed to show up for light duty
work at Atlantic and `unilaterally elected to keep yourself off the job.' " In his
motion to dismiss, O'Brien pointed out that the conspiracy counts of the
plaintiff's complaint were directed only at defendants Sedgwick and Holden.
Although the record does not disclose a motion to amend the complaint by the
plaintiff, the plaintiff apparently moved to add O'Brien as a defendant in count
III. The trial court granted the plaintiff leave to add O'Brien to count III. The
trial court then dismissed the conspiracy claim against O'Brien.
The plaintiff's allegations fail to state a cause of action for conspiracy
against O'Brien. The mere characterization of a combination of acts as a
conspiracy is insufficient to withstand a motion to dismiss. See Hume &
Liechty Veterinary Associates v. Hodes, 259 Ill. App. 3d 367, 369 (1994). In
order to state a claim for civil conspiracy, a plaintiff must plead a combination
of two or more persons for the purpose of accomplishing by concerted action
either an unlawful purpose or a lawful purpose by unlawful means. Adcock v.
Brakegate, Ltd., 164 Ill. 2d 54, 62 (1994). We first note that, because the acts
of an agent are considered in law to be the acts of the principal, there can be
no conspiracy between a principal and an agent. See Salaymeh v. InterQual,
Inc., 155 Ill. App. 3d 1040, 1043-44 (1987). The plaintiff's theory in this case
is that O'Brien, at least for the purposes of discharging the plaintiff, acted as
the agent of Atlantic. Accordingly, to the extent that the plaintiff seeks to allege
a conspiracy between O'Brien and Atlantic, that claim must fail. With regard
to the plaintiff's allegation of a conspiracy between O'Brien and Sedgwick and
Holden, the plaintiff's claim is entirely lacking factually. In Illinois, a plaintiff
must plead the facts essential to his cause of action; unsupported conclusions
are not enough. See Knox College v. Celotex Corp., 88 Ill. 2d 407, 422-26
(1981). Here, the plaintiff's complaint merely alleges that O'Brien conspired
with Sedgwick and Holden to deny the plaintiff workers' compensation
benefits. The complaint provides no factual allegations to support that
contention. The complaint does not allege any concert of action on the part of
O'Brien, Sedgwick and Holden to achieve this purpose. In fact, the complaint
does not even identify Sedgwick or Holden or the roles they played in this
case. The complaint alleges simply that Sedgwick and Holden made certain
statements to the plaintiff which, the plaintiff concludes, evidenced an intent to
deny the plaintiff his workers' compensation benefits. The complaint then
makes the bald assertion that O'Brien "conspired" with Sedgwick and Holden.
The plaintiff's conclusory allegations are not sufficient to state a cause of
action for conspiracy against O'Brien. See In re Chicago Flood Litigation, 176 Ill. 2d 179, 202 (1997). The trial court therefore correctly dismissed the
plaintiff's conspiracy claim against O'Brien.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the appellate court
which affirmed the dismissal of the plaintiff's complaint against O'Brien.
Affirmed.
CHIEF JUSTICE FREEMAN, concurring in part and dissenting in part:
Today, the majority holds that a plaintiff may not bring a retaliatory
discharge action against the agent or employee of the plaintiff's former
employer who actually fired the plaintiff on the employer's behalf. Rather, the
majority holds that the only proper defendant in a retaliatory discharge action
is the plaintiff's former employer. Slip op. at 1, 8.
I respectfully disagree. Based on both the law and public policy, I would
hold that a plaintiff may bring a retaliatory discharge action against not only
the plaintiff's former employer, but also the employer's agent or employee who
actually fired the plaintiff on the employer's behalf. Accordingly, I dissent from
part I of the majority opinion.
I. The Law
The controlling legal principles are so well settled, and their application in
Illinois is so established, that their recitation should not be necessary. However,
in light of this decision, these principles must be explained again.
Of course, in a case where the principal commands the agent to commit
a tort, the principal is liable to a plaintiff not based on agency law. Rather, the
principal is liable based on the tort rule "that one causing and intending an act
or result is as responsible as if he had personally performed the act or produced
the result." Restatement (Second) of Agency sec. 212, Comment a, at 455
(1958); accord W. Seavey, Agency sec. 82, at 137 (1964).
The law concerning an agent's liability where the principal commands the
agent to commit a tort is equally straightforward. "The basic proposition
concerning the agent's or servant's tort liability is simple and readily stated: it
is normally unaffected by the fact that he is an agent or servant." P. Mechem,
Agency sec. 343, at 232 (4th ed. 1952). I repeat: "An agent who does an act
otherwise a tort is not relieved from liability by the fact that he acted at the
command of the principal or on account of the principal ***." Restatement
(Second) of Agency sec. 343, at 105 (1958); accord W. Seavey, Agency sec.
129, at 220 (1964). This is the law in Illinois. 1 Ill. L. & Prac. Agency sec.
184, at 792 (1953).
The law reasons that the agent's tort liability:
"is not based upon the contractual relationship existing between the
principal and agent, but upon the common-law obligation that every
person must so act or use that which he controls as not to injure
another. In other words, if the agent is under a duty to third persons as
well as to his principal, a breach of his duty to such third persons will
render the agent liable to them. Thus, whether he is acting on his own
behalf or for another, an agent who violates a duty which he owes to a
third person is answerable to the injured party for the consequences. It
is no excuse to an agent that his principal is also liable for a tort ***.
Nor is an agent who is guilty of tortious conduct relieved from liability
merely because he acted at the request, or even at the command or
direction, of the principal." 3 Am. Jur. 2d Agency sec. 309, at 813-14
(1986).
These principles apply equally to nonagent employees. 27 Am. Jur. 2d
Employment Relationship sec. 488, at 929 (1996). Illinois courts have long
approved of this reasoning. Baird v. Shipman, 132 Ill. 16, 18 (1890); Gateway
Erectors Division of Imoco-Gateway Corp. v. Lutheran General Hospital, 102
Ill. App. 3d 300, 301-02 (1981).
Not only is the law clear on the joint liability of principal and agent in
cases such as this, but the law is also clear on their joinder as defendants.
"Principal and agent can be joined in an action for a wrong resulting from the
tortious conduct of an agent or that of agent and principal, and a judgment can
be rendered against each." Restatement (Second) of Agency sec. 217B(1), at
472 (1958); accord W. Seavey, Agency sec. 95, at 169 (1964). The agency
relationship "simply provides an alternative defendant. The principal and his
agent are jointly and severally liable for all of the damages sustained by the
plaintiff." 1 J. Lee & B. Lindahl, Modern Tort Law sec. 7.02, at 187 (rev. ed.
1988); accord 27 Am. Jur. 2d Employment Relationship sec. 480 (1996)
(nonagent employees). This court long ago explained:
"that a joint complaint against a master and his servant or principal and
agent states but a single cause of action arising from the same act of
negligence *** and both being liable for the same act of negligence
they may be joined as defendants." Skala v. Lehon, 343 Ill. 602, 606
(1931).
Accord Lasko v. Meier, 394 Ill. 71, 77 (1946); Laver v. Kingston, 11 Ill. App.
2d 323, 327-28 (1956).
The majority states that these general principles of agency law may not
"[l]ogically" be applied to the tort of retaliatory discharge. The majority first
reasoned that "only 'the employer' has the power to hire or fire an employee.
Obviously, an agent or employee of the employer may carry out that function
on the employer's behalf, but it is still the authority of the employer which is
being exercised." (Emphasis in original.) Slip op. at 7. The majority
subsequently reasoned:
"As explained above, the power to hire and fire employees is ultimately
possessed only by the employer. Consequently, the tort of retaliatory
discharge may be committed only by the employer. The agent or
employee who carries out the employer's decision to fire will not be
subject to personal liability for retaliatory discharge." Slip op. at 8.
The majority's reasoning cannot withstand analysis. The majority is quite
correct that: only the employer can fire an employee; an agent can execute that
function on the employer's behalf; but the agent is nonetheless exercising the
authority of the employer. However, all agents exercise their principals'
authority on their principals' behalf. In so doing, their acts are viewed as the
acts of their principals. This is what agency law is all about. W. Seavey,
Agency sec. 8(B), at 11 (1964); P. Mechem, Agency sec. 35, at 19 (4th ed.
1952); Restatement (Second) of Agency sec. 7 (1958); 1 Ill. L. & Prac. Agency
sec. 111 (1953). Their single act, if tortious, states a single cause of action, to
which they both may be joined as defendants. Skala, 343 Ill. at 606. Indeed, the
majority acknowledges this in part II of its opinion. See slip op. at 9-10. Thus,
the application of these well-settled principles of agency law would not
"expand" the tort of retaliatory discharge. The tort of retaliatory discharge is not
unique in this regard.
The majority is incorrect, as a matter of law, in its conclusion that only the
employer can commit the tort of retaliatory discharge. Let me illustrate with
two hypotheticals. In the first, an employer says to her agent: "I authorize and
order you to punch plaintiff in the face." The agent goes to the plaintiff and
says: "Our employer has authorized and ordered me to punch you in the face,
and I do so on our employer's behalf." The agent then punches plaintiff in the
face. In the second, as alleged in the present case, the employer says to her
agent: "Plaintiff is exercising a legal right or is refusing to do an illegal act. In
retaliation, I want to fire plaintiff. I authorize and order you to fire plaintiff."
The agent goes to the plaintiff and says: "Our employer has authorized and
ordered me to fire you, and I do so on our employer's behalf. You're fired."
Can it be seriously questioned that the plaintiff in each hypothetical has a
tort cause of action against both the principal and the agent jointly and
severally? Based on the above-stated principles of agency and tort law, the
plaintiff in the first hypothetical may sue both the principal and the agent for
the tort of battery, and in the second hypothetical for the tort of retaliatory
discharge.
This court applied these principles long ago. In Johnson v. Barber, 10 Ill. 425 (1849), the plaintiff brought a tort action against a principal and his agent.
Defendants tendered a jury instruction stating that plaintiff could not recover
against both the principal and the agent. According to the instruction, if the
agent had acted under the direction of the principal, then the principal alone is
liable. If the agent had acted in a manner contrary to the principal's direction,
then the principal is not liable and must be acquitted. Johnson, 10 Ill. at 427.
The trial court refused the instruction and this court affirmed:
"The seventh instruction was clearly wrong. If the act complained
of was illegal, the fact that one of the defendants committed it under the
direction of the other, did not shield him from responsibility, but both
were equally liable to the party injured, as well the one who did the act
as the one who procured it to be done. All concerned in the commission
of an unlawful act are responsible for the consequences. Admit the
principle asserted by this instruction, and every person charged with the
commission of an act prohibited by law could excuse himself by
showing that he acted in obedience to the command or under the
direction of another. Such a doctrine would be subversive of private
rights and detrimental to the public interests." Johnson, 10 Ill. at 430-
31.
As characterized by this court in Johnson, the majority opinion is clearly
wrong on this issue as a matter of law. I agree with the observation made in
Zurek v. Hasten, 553 F. Supp. 745 (N.D. Ill. 1982), that "it would distort
normal tort doctrine, once a cause of action is recognized, to impose liability
on a wrongdoer's principal but not on the wrongdoer himself." Zurek, 553 F. Supp. at 749 (interpreting Illinois law); accord Haltek v. Village of Park Forest,
864 F. Supp. 802, 806 (N.D. Ill. 1994).
II. Public Policy
Also, contrary to the majority (see slip op. at 7-8), I agree with the public
policy that holding the "active wrongdoer" liable, in addition to the former
employer, promotes the deterrent goal of the tort. Fellhauer v. City of Geneva,
190 Ill. App. 3d 592, 602 (1989), citing Zurek, 553 F. Supp. at 749. As this
court observed nearly 150 years ago, to hold otherwise, as the majority does
today, would be "detrimental to the public interests." Johnson, 10 Ill. at 431.
III. Conclusion
For the foregoing reasons, I would hold that a plaintiff may bring a
retaliatory discharge action against not only the plaintiff's former employer, but
also the employer's agent or employee who actually fired the plaintiff on the
employer's behalf. Accordingly, I dissent from part I of the majority opinion.
JUSTICE HARRISON joins in this partial concurrence and partial dissent.
Docket No. 83321--Agenda 10--January 1998.
JACK L. BUCKNER, Appellant v. ATLANTIC PLANT MAINTENANCE,
INC., et al. (James L. O'Brien, Appellee).
Opinion filed April 16, 1998.
JUSTICE BILANDIC delivered the opinion of the court:
The primary issue presented in this appeal is whether a plaintiff may bring
a retaliatory discharge action against the employee or agent who, on behalf of
the plaintiff's former employer, discharged the plaintiff in alleged violation of
public policy. We hold that the limited tort of retaliatory discharge recognized
by this court in Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978), should not be
expanded to allow claims against such parties.
FACTS
The plaintiff, Jack L. Buckner, filed a four-count complaint against
Atlantic Plant Maintenance, Inc. (Atlantic), James L. O'Brien (O'Brien),
Sedgwick James of Illinois, Inc. (Sedgwick), and Patrick J. Holden (Holden)
in the circuit court of Cook County on February 28, 1995. The plaintiff alleged
that he was periodically employed by Atlantic as a millwright at LaSalle
Nuclear Power Station on and prior to October 13, 1993. The plaintiff further
alleged that he suffered a work-related injury on September 23, 1993, while
employed by Atlantic. Counts I and II of the complaint were directed at
Atlantic and O'Brien. Count I charged that Atlantic and O'Brien terminated the
plaintiff's employment on October 23, 1993, in retaliation for the plaintiff's
"intention to pursue and his pursuit of a certain workers' compensation claim."
Count II realleged the allegations of count I and sought punitive damages from
Atlantic and O'Brien. Counts III and IV were directed against Sedgwick and
Holden. Count III charged that Sedgwick and Holden conspired with Atlantic
and O'Brien to deny the plaintiff his workers' compensation benefits by
"falsely informing plaintiff on November 3, 1993, that he would receive no
benefits because he failed to show up for light duty work at Atlantic and
`unilaterally elected to keep yourself off the job.' " Count IV sought punitive
damages from Sedgwick and Holden.
Atlantic filed an answer admitting that it had been the plaintiff's employer.
As an affirmative defense, Atlantic alleged that it had "laid off" the plaintiff as
part of a "reduction in force."
O'Brien filed a motion to dismiss the plaintiff's complaint against him
pursuant to section 2--619(a) of the Code of Civil Procedure (735 ILCS 5/2--
619(a) (West 1996)). O'Brien attached his affidavit to the motion. In that
affidavit, O'Brien averred that he was the executive vice president of
Consulting Services of Frankfort, Illinois, Inc., and that, in October 1993, he
performed consulting services for Atlantic regarding work-place safety. O'Brien
further stated that the plaintiff was not an employee of Consulting Services of
Frankfort, Illinois, Inc., and that O'Brien was not an employee of Atlantic.
Finally, O'Brien averred that he had no authority to hire or discharge
employees of Atlantic in October of 1993. Based upon this affidavit, O'Brien's
motion sought dismissal of the complaint against him on the ground that he
was not the plaintiff's employer.
The plaintiff filed a response to O'Brien's motion to dismiss, accompanied
by the affidavits of the plaintiff and his counsel. The plaintiff's affidavit stated
that O'Brien worked out of Atlantic's office at the power plant, O'Brien gave
safety lectures at the job site on behalf of Atlantic, and O'Brien, on several
occasions, drove the plaintiff from the job site to see physicians for his work-
related injury. The affidavit of the plaintiff's counsel stated that he possessed
a letter written by O'Brien to one of the plaintiff's treating physicians in which
O'Brien called himself "Safety Supervisor, Atlantic Plant Maintenance," and
requested information about the plaintiff's medical condition. On the basis of
these affidavits, the plaintiff argued that he had sufficiently alleged that O'Brien
had the authority to discharge the plaintiff on behalf of Atlantic. The plaintiff
also cited two decisions of the Second District of the appellate court which held
that a plaintiff may bring a retaliatory discharge action against a former
supervisor individually, in addition to their former employer.
O'Brien filed a reply memorandum in support of his motion to dismiss.
First, O'Brien pointed out that the conspiracy count of the plaintiff's complaint,
count III, was not directed at O'Brien and contained no prayer for relief against
O'Brien. With regard to the retaliatory discharge claim, O'Brien argued that the
plaintiff did not allege that O'Brien had been his supervisor. Further, O'Brien
argued, the First District of the appellate court had held, contrary to the Second
District, that a retaliatory discharge action may not be brought against parties
other than the plaintiff's former employer.
The trial court granted O'Brien's motion to dismiss. The court's order first
allowed the plaintiff leave to amend count III of his complaint instanter to
include O'Brien in the prayer for relief under the conspiracy theory. The order
then dismissed counts I, II and III as they pertained to O'Brien.
The plaintiff appealed to the appellate court. The appellate court, following
the precedent of the First District, held that the only proper defendant in a
retaliatory discharge action is the plaintiff's former employer, not the plaintiff's
former supervisors. The court declined to follow the contrary holdings of the
Second District. Accordingly, because the complaint did not allege that O'Brien
had been the plaintiff's employer, the appellate court affirmed the dismissal of
the retaliatory discharge claim against O'Brien. The appellate court also
affirmed the dismissal of the conspiracy claim against O'Brien. 287 Ill. App.
3d 173.
We accepted the plaintiff's petition for leave to appeal to resolve the
conflict in the appellate court on the retaliatory discharge issue. 166 Ill. 2d R.
315(a).
ANALYSIS
I. Retaliatory Discharge
We must decide whether a plaintiff may bring a retaliatory discharge action
against the employee or agent of their former employer who effected the
discharge on behalf of the employer. This court has not yet addressed this
issue. As noted, the decisions of our appellate court on this issue are
conflicting. The First District, in a line of cases beginning with Morton v.
Hartigan, 145 Ill. App. 3d 417 (1986), has held that the only proper defendant
in a retaliatory discharge action is the plaintiff's former employer. Morton, 145
Ill. App. 3d at 421-22; Balla v. Gambro, Inc., 203 Ill. App. 3d 57, 63 (1990),
rev'd on other grounds, 145 Ill. 2d 492 (1991); Motsch v. Pine Roofing Co.,
178 Ill. App. 3d 169, 176-78 (1989). The court in Morton looked to this court's
precedent which, it determined, required a narrow scope for the tort of
retaliatory discharge. The Morton court concluded that allowing a retaliatory
discharge action to be brought against a party other than the former employer
would unduly expand the tort. Morton, 145 Ill. App. 3d at 421-22; see also
Balla, 203 Ill. App. 3d at 63; Motsch, 178 Ill. App. 3d at 176-77.
The Second District of our appellate court has reached a contrary
conclusion. In Fellhauer v. City of Geneva, 190 Ill. App. 3d 592, 600-02
(1989), rev'd on other grounds, 142 Ill. 2d 495 (1991), the court declined to
follow Morton and held that an action for retaliatory discharge may be brought
against not only the plaintiff's former employer, but also the employee or agent
who performed the discharge. The Fellhauer court reasoned that, under
principles of agency law, where the acts of an agent render the principal liable,
the agent is also liable. The court further determined that holding the "active
wrongdoer" liable, in addition to the employer, for retaliatory discharge would
promote the deterrent goal of the tort. Fellhauer, 190 Ill. App. 3d at 602; see
also Bragado v. Cherry Electrical Products Corp., 191 Ill. App. 3d 136, 143
(1989) (noting the holding in Fellhauer that a retaliatory discharge action may
be brought against the agent or employee who performs the discharge, but
finding that holding factually inapplicable).
The tort of retaliatory discharge has a relatively short history in this state.
It was first recognized as a cause of action by this court in 1978 in Kelsay v.
Motorola, Inc., 74 Ill. 2d 172 (1978). The Kelsay court noted that the long-
standing general rule in this state was that an at-will employee may be
discharged by the employer at any time and for any reason. The court
determined, however, that a limited exception to this rule should be recognized
when the reason for the employee's discharge is the employee's assertion of his
or her rights under the Workmen's Compensation Act. That Act, the court
reasoned, was enacted to provide a comprehensive scheme for efficient and
expeditious remedies for injured employees. The court concluded that "[t]his
scheme would be seriously undermined if employers were permitted to abuse
their power to terminate by threatening to discharge employees for seeking
compensation under the Act." Kelsay, 74 Ill. 2d at 181-82. Accordingly, the
court held that a plaintiff who was terminated for pursuing workers'
compensation benefits could bring an action for retaliatory discharge against her
former employer.
In Palmateer v. International Harvester Co., 85 Ill. 2d 124 (1981), the
court was presented with the issue of whether the tort recognized in Kelsay
should be applied beyond the workers' compensation setting. There, the
plaintiff alleged that he was discharged by his employer because he supplied
information to law enforcement authorities that a fellow employee might be
involved in illegal activities and agreed to assist in the investigation of the
other employee. In a sharply divided decision, the court held that a retaliatory
discharge action could be brought against an employer that fires an employee
for volunteering information about possible criminal activity to law enforcement
authorities. Palmateer, 85 Ill. 2d at 133. One of the dissenters in Palmateer was
Justice Ryan, the author of the majority opinion in Kelsay. Justice Ryan wrote
that the majority's opinion in Palmateer was an unwarranted extension of the
limited cause of action recognized in Kelsay. Palmateer, 85 Ill. 2d at 136
(Ryan, J., dissenting).
This court's subsequent decision in Barr v. Kelso-Burnett Co., 106 Ill. 2d 520 (1985), reaffirmed the narrow scope of the tort recognized in Kelsay. In
Barr, the court refused to allow an action for retaliatory discharge because the
discharged plaintiffs failed to allege a violation of a clearly mandated public
policy. Barr, 106 Ill. 2d at 526. It had been argued in that case that the court's
decision in Palmateer signalled an expansion of the retaliatory discharge tort.
The Barr court soundly rejected this proposition:
"Contrary to plaintiffs' assertion, however, this court has not, by its
Palmateer and Kelsay decisions, `rejected a narrow interpretation of the
retaliatory discharge tort' and does not `strongly support' the expansion
of the tort. The common law doctrine that an employer may discharge
an employee-at-will for any reason or for no reason is still the law in
Illinois, except for when the discharge violates a clearly mandated
public policy." Barr, 106 Ill. 2d at 525.
Numerous subsequent decisions of this court have similarly maintained the
narrow scope of the retaliatory discharge cause of action. For example, in
Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 159-61 (1992), this court
declined to expand the tort to encompass a retaliatory discharge "process,"
noting that, "[d]espite the revolutionizing effect of Kelsay, the common law
doctrine that an employer may discharge an employee-at-will for any reason or
for no reason remains the law in Illinois." Likewise, in Zimmerman v. Buchheit
of Sparta, Inc., 164 Ill. 2d 29, 45 (1994), the plurality traced this court's
"guarded development and narrow construction of the tort of retaliatory
discharge" to reach the conclusion that it should not be expanded to encompass
retaliatory discrimination or demotion. See also Balla v. Gambro, Inc., 145 Ill. 2d 492, 501 (1991) (declining to extend the "limited and narrow" tort of
retaliatory discharge to allow in-house counsel to sue former employer for
retaliatory discharge); Fellhauer v. City of Geneva, 142 Ill. 2d 495, 505, 508
(1991) (noting that the tort of retaliatory discharge is a "limited and narrow
cause of action," and finding that the "compelling circumstances" necessitating
recognition of the action were not present in that case).
In this case, we are again presented with a request to expand the retaliatory
discharge cause of action. The plaintiff asks that we allow this cause of action
to be brought not only against the plaintiff's former employer, but also against
the agent or employee of the employer who carried out the discharge of the
plaintiff on the employer's behalf. Given this court's past precedent
admonishing against the expansion of this tort, we decline to expand it in the
manner proposed here by the plaintiff. The policy considerations that motivated
this court to recognize a retaliatory discharge cause of action are adequately
vindicated by allowing a cause of action against employers. Kelsay recognized
a cause of action for retaliatory discharge in order to prohibit "employers" from
abusing "their power to terminate." Kelsay, 74 Ill. 2d at 182. Subsequent
decisions of this court shaping the contours of this tort have likewise noted that
"an employer could effectively frustrate a significant public policy by using its
power of dismissal in a coercive manner." (Emphasis added.) Fellhauer, 142 Ill. 2d at 508. Thus, this court has concluded, in certain "compelling
circumstances," recognition of a cause of action for retaliatory discharge is
necessary to "vindicate the public policy underlying the employee's activity,
and to deter employer conduct inconsistent with that policy." (Emphasis added.)
Fellhauer, 142 Ill. 2d at 508; see also Hartlein, 151 Ill. 2d at 166 (stating that
Kelsay prohibits an employer from utilizing an employee's job as leverage to
condition his exercise of rights under the Workers' Compensation Act);
Hinthorn v. Roland's of Bloomington, Inc., 119 Ill. 2d 526, 529 (1988) (noting
that retaliatory discharge actions are allowed to insure that sound public policy
cannot be "frustrated by the actions of an employer" (emphasis added)).
This emphasis on tempering the power of the employer is not surprising.
Logically speaking, only "the employer" has the power to hire or fire an
employee. Obviously, an agent or employee of the employer may carry out that
function on the employer's behalf, but it is still the authority of the employer
which is being exercised. If the discharge violated public policy, it is the
employer who is rightly held liable for damages. The purpose underlying the
recognition of retaliatory discharge actions is therefore fully served by allowing
actions only against the employer.
The plaintiff contends, however, that the "deterrent effect" of the tort will
be diminished if the employee or agent who "participated" in the firing is not
also subject to liability. Imposing liability for retaliatory discharge on parties
other than the employer is not necessary. The power to discharge rests with the
employer. Subjecting the employer to liability for retaliatory discharge therefore
acts to deter discharges which violate public policy. The plaintiff suggests that
allowing other parties to be held liable is necessary because it may be those
other parties who "devise the plan" to discharge the plaintiff for an unlawful
reason. Even in the plaintiff's scenario, however, the discharge is still
authorized by the employer. Moreover, from a practical perspective, if an agent
or employee induces the employer to discharge another employee for an
unlawful reason, and the employer is held liable for retaliatory discharge as a
result, it is likely that the employer itself will act to "deter" that agent or
employee from repeating such conduct.
Limiting the potential defendants in a retaliatory discharge action to
employers is particularly appropriate in a case such as this where the alleged
unlawful reason for the termination was the plaintiff's pursuit of workers'
compensation benefits. Under the Workers' Compensation Act, workers'
compensation benefits are paid to an injured employee by the employer. See
820 ILCS 305/11 (West 1996). Presumably, the intent of an employer who
adopts a policy of firing employees for seeking workers' compensation benefits
is to avoid having to pay such benefits to employees. Accordingly, it is only
the employer who has a "motive" to fire an employee for seeking workers'
compensation benefits. The retaliatory discharge claim is therefore properly
brought against the employer.
The plaintiff also contends that allowing retaliatory discharge actions to be
brought against the agent or employee who carried out the firing is not an
expansion of the retaliatory discharge tort, but is simply the application of
general principles of agency law. We disagree. The plaintiff asserts that, under
general principles of agency law, an agent whose tortious conduct renders the
principal liable is also liable for his own tortious acts. This general rule may
not, however, be logically applied to the tort of retaliatory discharge. As
explained above, the power to hire and fire employees is ultimately possessed
only by the employer. Consequently, the tort of retaliatory discharge may be
committed only by the employer. The agent or employee who carries out the
employer's decision to fire will not be subject to personal liability for
retaliatory discharge. We therefore disagree with the plaintiff's contention that
his position in this case does not represent an expansion of the retaliatory
discharge tort.
Accordingly, we hold that the only proper defendant in a retaliatory
discharge action is the plaintiff's former employer. The plaintiff's complaint in
this case alleged that he was employed by Atlantic, not O'Brien. The trial
court's order dismissing the retaliatory discharge counts against O'Brien was
therefore correct. The appellate court decisions in Fellhauer v. City of Geneva
and Bragado v. Cherry Electrical Products Corp., to the extent they are
inconsistent with this opinion, are overruled.
II. Conspiracy
The trial court also dismissed the plaintiff's cause of action for civil
conspiracy against O'Brien. We hold that this claim was properly dismissed.
Counts III and IV of the plaintiff's complaint purport to allege a
conspiracy "to deny plaintiff his Workers' Compensation Act benefits, and to
hinder him and prevent him from pursuing his claim." As originally pled,
counts III and IV charged that defendants Sedgwick and Holden attempted to
accomplish this objective by "falsely informing plaintiff on November 3, 1993,
that he would receive no benefits because he failed to show up for light duty
work at Atlantic and `unilaterally elected to keep yourself off the job.' " In his
motion to dismiss, O'Brien pointed out that the conspiracy counts of the
plaintiff's complaint were directed only at defendants Sedgwick and Holden.
Although the record does not disclose a motion to amend the complaint by the
plaintiff, the plaintiff apparently moved to add O'Brien as a defendant in count
III. The trial court granted the plaintiff leave to add O'Brien to count III. The
trial court then dismissed the conspiracy claim against O'Brien.
The plaintiff's allegations fail to state a cause of action for conspiracy
against O'Brien. The mere characterization of a combination of acts as a
conspiracy is insufficient to withstand a motion to dismiss. See Hume &
Liechty Veterinary Associates v. Hodes, 259 Ill. App. 3d 367, 369 (1994). In
order to state a claim for civil conspiracy, a plaintiff must plead a combination
of two or more persons for the purpose of accomplishing by concerted action
either an unlawful purpose or a lawful purpose by unlawful means. Adcock v.
Brakegate, Ltd., 164 Ill. 2d 54, 62 (1994). We first note that, because the acts
of an agent are considered in law to be the acts of the principal, there can be
no conspiracy between a principal and an agent. See Salaymeh v. InterQual,
Inc., 155 Ill. App. 3d 1040, 1043-44 (1987). The plaintiff's theory in this case
is that O'Brien, at least for the purposes of discharging the plaintiff, acted as
the agent of Atlantic. Accordingly, to the extent that the plaintiff seeks to allege
a conspiracy between O'Brien and Atlantic, that claim must fail. With regard
to the plaintiff's allegation of a conspiracy between O'Brien and Sedgwick and
Holden, the plaintiff's claim is entirely lacking factually. In Illinois, a plaintiff
must plead the facts essential to his cause of action; unsupported conclusions
are not enough. See Knox College v. Celotex Corp., 88 Ill. 2d 407, 422-26
(1981). Here, the plaintiff's complaint merely alleges that O'Brien conspired
with Sedgwick and Holden to deny the plaintiff workers' compensation
benefits. The complaint provides no factual allegations to support that
contention. The complaint does not allege any concert of action on the part of
O'Brien, Sedgwick and Holden to achieve this purpose. In fact, the complaint
does not even identify Sedgwick or Holden or the roles they played in this
case. The complaint alleges simply that Sedgwick and Holden made certain
statements to the plaintiff which, the plaintiff concludes, evidenced an intent to
deny the plaintiff his workers' compensation benefits. The complaint then
makes the bald assertion that O'Brien "conspired" with Sedgwick and Holden.
The plaintiff's conclusory allegations are not sufficient to state a cause of
action for conspiracy against O'Brien. See In re Chicago Flood Litigation, 176 Ill. 2d 179, 202 (1997). The trial court therefore correctly dismissed the
plaintiff's conspiracy claim against O'Brien.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the appellate court
which affirmed the dismissal of the plaintiff's complaint against O'Brien.
Affirmed.
CHIEF JUSTICE FREEMAN, concurring in part and dissenting in part:
Today, the majority holds that a plaintiff may not bring a retaliatory
discharge action against the agent or employee of the plaintiff's former
employer who actually fired the plaintiff on the employer's behalf. Rather, the
majority holds that the only proper defendant in a retaliatory discharge action
is the plaintiff's former employer. Slip op. at 1, 8.
I respectfully disagree. Based on both the law and public policy, I would
hold that a plaintiff may bring a retaliatory discharge action against not only
the plaintiff's former employer, but also the employer's agent or employee who
actually fired the plaintiff on the employer's behalf. Accordingly, I dissent from
part I of the majority opinion.
I. The Law
The controlling legal principles are so well settled, and their application in
Illinois is so established, that their recitation should not be necessary. However,
in light of this decision, these principles must be explained again.
Of course, in a case where the principal commands the agent to commit
a tort, the principal is liable to a plaintiff not based on agency law. Rather, the
principal is liable based on the tort rule "that one causing and intending an act
or result is as responsible as if he had personally performed the act or produced
the result." Restatement (Second) of Agency sec. 212, Comment a, at 455
(1958); accord W. Seavey, Agency sec. 82, at 137 (1964).
The law concerning an agent's liability where the principal commands the
agent to commit a tort is equally straightforward. "The basic proposition
concerning the agent's or servant's tort liability is simple and readily stated: it
is normally unaffected by the fact that he is an agent or servant." P. Mechem,
Agency sec. 343, at 232 (4th ed. 1952). I repeat: "An agent who does an act
otherwise a tort is not relieved from liability by the fact that he acted at the
command of the principal or on account of the principal ***." Restatement
(Second) of Agency sec. 343, at 105 (1958); accord W. Seavey, Agency sec.
129, at 220 (1964). This is the law in Illinois. 1 Ill. L. & Prac. Agency sec.
184, at 792 (1953).
The law reasons that the agent's tort liability:
"is not based upon the contractual relationship existing between the
principal and agent, but upon the common-law obligation that every
person must so act or use that which he controls as not to injure
another. In other words, if the agent is under a duty to third persons as
well as to his principal, a breach of his duty to such third persons will
render the agent liable to them. Thus, whether he is acting on his own
behalf or for another, an agent who violates a duty which he owes to a
third person is answerable to the injured party for the consequences. It
is no excuse to an agent that his principal is also liable for a tort ***.
Nor is an agent who is guilty of tortious conduct relieved from liability
merely because he acted at the request, or even at the command or
direction, of the principal." 3 Am. Jur. 2d Agency sec. 309, at 813-14
(1986).
These principles apply equally to nonagent employees. 27 Am. Jur. 2d
Employment Relationship sec. 488, at 929 (1996). Illinois courts have long
approved of this reasoning. Baird v. Shipman, 132 Ill. 16, 18 (1890); Gateway
Erectors Division of Imoco-Gateway Corp. v. Lutheran General Hospital, 102
Ill. App. 3d 300, 301-02 (1981).
Not only is the law clear on the joint liability of principal and agent in
cases such as this, but the law is also clear on their joinder as defendants.
"Principal and agent can be joined in an action for a wrong resulting from the
tortious conduct of an agent or that of agent and principal, and a judgment can
be rendered against each." Restatement (Second) of Agency sec. 217B(1), at
472 (1958); accord W. Seavey, Agency sec. 95, at 169 (1964). The agency
relationship "simply provides an alternative defendant. The principal and his
agent are jointly and severally liable for all of the damages sustained by the
plaintiff." 1 J. Lee & B. Lindahl, Modern Tort Law sec. 7.02, at 187 (rev. ed.
1988); accord 27 Am. Jur. 2d Employment Relationship sec. 480 (1996)
(nonagent employees). This court long ago explained:
"that a joint complaint against a master and his servant or principal and
agent states but a single cause of action arising from the same act of
negligence *** and both being liable for the same act of negligence
they may be joined as defendants." Skala v. Lehon, 343 Ill. 602, 606
(1931).
Accord Lasko v. Meier, 394 Ill. 71, 77 (1946); Laver v. Kingston, 11 Ill. App.
2d 323, 327-28 (1956).
The majority states that these general principles of agency law may not
"[l]ogically" be applied to the tort of retaliatory discharge. The majority first
reasoned that "only 'the employer' has the power to hire or fire an employee.
Obviously, an agent or employee of the employer may carry out that function
on the employer's behalf, but it is still the authority of the employer which is
being exercised." (Emphasis in original.) Slip op. at 7. The majority
subsequently reasoned:
"As explained above, the power to hire and fire employees is ultimately
possessed only by the employer. Consequently, the tort of retaliatory
discharge may be committed only by the employer. The agent or
employee who carries out the employer's decision to fire will not be
subject to personal liability for retaliatory discharge." Slip op. at 8.
The majority's reasoning cannot withstand analysis. The majority is quite
correct that: only the employer can fire an employee; an agent can execute that
function on the employer's behalf; but the agent is nonetheless exercising the
authority of the employer. However, all agents exercise their principals'
authority on their principals' behalf. In so doing, their acts are viewed as the
acts of their principals. This is what agency law is all about. W. Seavey,
Agency sec. 8(B), at 11 (1964); P. Mechem, Agency sec. 35, at 19 (4th ed.
1952); Restatement (Second) of Agency sec. 7 (1958); 1 Ill. L. & Prac. Agency
sec. 111 (1953). Their single act, if tortious, states a single cause of action, to
which they both may be joined as defendants. Skala, 343 Ill. at 606. Indeed, the
majority acknowledges this in part II of its opinion. See slip op. at 9-10. Thus,
the application of these well-settled principles of agency law would not
"expand" the tort of retaliatory discharge. The tort of retaliatory discharge is not
unique in this regard.
The majority is incorrect, as a matter of law, in its conclusion that only the
employer can commit the tort of retaliatory discharge. Let me illustrate with
two hypotheticals. In the first, an employer says to her agent: "I authorize and
order you to punch plaintiff in the face." The agent goes to the plaintiff and
says: "Our employer has authorized and ordered me to punch you in the face,
and I do so on our employer's behalf." The agent then punches plaintiff in the
face. In the second, as alleged in the present case, the employer says to her
agent: "Plaintiff is exercising a legal right or is refusing to do an illegal act. In
retaliation, I want to fire plaintiff. I authorize and order you to fire plaintiff."
The agent goes to the plaintiff and says: "Our employer has authorized and
ordered me to fire you, and I do so on our employer's behalf. You're fired."
Can it be seriously questioned that the plaintiff in each hypothetical has a
tort cause of action against both the principal and the agent jointly and
severally? Based on the above-stated principles of agency and tort law, the
plaintiff in the first hypothetical may sue both the principal and the agent for
the tort of battery, and in the second hypothetical for the tort of retaliatory
discharge.
This court applied these principles long ago. In Johnson v. Barber, 10 Ill. 425 (1849), the plaintiff brought a tort action against a principal and his agent.
Defendants tendered a jury instruction stating that plaintiff could not recover
against both the principal and the agent. According to the instruction, if the
agent had acted under the direction of the principal, then the principal alone is
liable. If the agent had acted in a manner contrary to the principal's direction,
then the principal is not liable and must be acquitted. Johnson, 10 Ill. at 427.
The trial court refused the instruction and this court affirmed:
"The seventh instruction was clearly wrong. If the act complained
of was illegal, the fact that one of the defendants committed it under the
direction of the other, did not shield him from responsibility, but both
were equally liable to the party injured, as well the one who did the act
as the one who procured it to be done. All concerned in the commission
of an unlawful act are responsible for the consequences. Admit the
principle asserted by this instruction, and every person charged with the
commission of an act prohibited by law could excuse himself by
showing that he acted in obedience to the command or under the
direction of another. Such a doctrine would be subversive of private
rights and detrimental to the public interests." Johnson, 10 Ill. at 430-
31.
As characterized by this court in Johnson, the majority opinion is clearly
wrong on this issue as a matter of law. I agree with the observation made in
Zurek v. Hasten, 553 F. Supp. 745 (N.D. Ill. 1982), that "it would distort
normal tort doctrine, once a cause of action is recognized, to impose liability
on a wrongdoer's principal but not on the wrongdoer himself." Zurek, 553 F. Supp. at 749 (interpreting Illinois law); accord Haltek v. Village of Park Forest,
864 F. Supp. 802, 806 (N.D. Ill. 1994).
II. Public Policy
Also, contrary to the majority (see slip op. at 7-8), I agree with the public
policy that holding the "active wrongdoer" liable, in addition to the former
employer, promotes the deterrent goal of the tort. Fellhauer v. City of Geneva,
190 Ill. App. 3d 592, 602 (1989), citing Zurek, 553 F. Supp. at 749. As this
court observed nearly 150 years ago, to hold otherwise, as the majority does
today, would be "detrimental to the public interests." Johnson, 10 Ill. at 431.
III. Conclusion
For the foregoing reasons, I would hold that a plaintiff may bring a
retaliatory discharge action against not only the plaintiff's former employer, but
also the employer's agent or employee who actually fired the plaintiff on the
employer's behalf. Accordingly, I dissent from part I of the majority opinion.
JUSTICE HARRISON joins in this partial concurrence and partial dissent.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
