{ "id": 5458294, "name": "FRANKLIN CROSS, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee", "name_abbreviation": "Cross v. City of Chicago", "decision_date": "2004-08-30", "docket_number": "No. 1-03-0408", "first_page": "1", "last_page": "13", "citations": [ { "type": "official", "cite": "352 Ill. App. 3d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "95 Ill. 2d 211", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111336 ], "year": 1983, "pin_cites": [ { "page": "220", "parenthetical": "statutes should not be rewritten by this court to conform to its idea of public policy" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0211-01" ] }, { "cite": "680 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "272" } ], "opinion_index": 0 }, { "cite": "176 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544917 ], "year": 1997, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0179-01" ] }, { "cite": "692 N.E.2d 1177", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "1181", "parenthetical": "both elements are required - a determination of policy and an exercise of discretion" } ], "opinion_index": 0 }, { "cite": "181 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821401 ], "year": 1998, "pin_cites": [ { "page": "341", "parenthetical": "both elements are required - a determination of policy and an exercise of discretion" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0335-01" ] }, { "cite": "473 N.E.2d 1280", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "1283-84" }, { "page": "1283-84" }, { "page": "1283" } ], "opinion_index": 0 }, { "cite": "105 Ill. 2d 143", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141727 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "150" }, { "page": "149-50" }, { "page": "149-50" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0143-01" ] }, { "cite": "499 N.E.2d 435", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 14, "year": 1986, "pin_cites": [ { "page": "435" }, { "page": "437" }, { "page": "436" }, { "page": "436" }, { "page": "436" }, { "page": "436" }, { "page": "436" }, { "page": "436" }, { "page": "436" }, { "page": "439" }, { "page": "439" }, { "page": "439" } ], "opinion_index": 0 }, { "cite": "113 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173003 ], "weight": 12, "year": 1986, "pin_cites": [ { "page": "547" }, { "page": "551" }, { "page": "548" }, { "page": "548-49" }, { "page": "549" }, { "page": "549" }, { "page": "549" }, { "page": "549" }, { "page": "554" }, { "page": "555-56" }, { "page": "555-56" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0545-01" ] }, { "cite": "485 N.E.2d 372", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "108 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130445 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/108/0502-01" ] }, { "cite": "51 Ill. App. 3d 1022", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3387017 ], "pin_cites": [ { "page": "1026" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/1022-01" ] }, { "cite": "258 Ill. App. 238", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5604589 ], "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill-app/258/0238-01" ] }, { "cite": "49 Ill. App. 2d. 171", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5273638 ], "year": 1930, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/49/0171-01" ] }, { "cite": "130 Ill. 268", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 12124706 ], "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/ill/130/0268-01" ] }, { "cite": "421 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "85 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469094 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "129-30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0124-01" ] }, { "cite": "384 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "357" }, { "page": "359" } ], "opinion_index": 0 }, { "cite": "74 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994390 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "181" }, { "page": "186-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0172-01" ] }, { "cite": "645 N.E.2d 877", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "880" }, { "page": "879" }, { "page": "885" } ], "opinion_index": 0 }, { "cite": "164 Ill. 2d 29", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477029 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "34-35" }, { "page": "33-34" }, { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0029-01" ] }, { "cite": "588 N.E.2d 1104", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "1109" }, { "page": "1109" } ], "opinion_index": 0 }, { "cite": "147 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278377 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "11" }, { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0001-01" ] }, { "cite": "763 N.E.2d 756", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "762-63" }, { "page": "760" }, { "page": "764" }, { "page": "765" } ], "opinion_index": 0 }, { "cite": "198 Ill. 2d 475", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29959 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "484" }, { "page": "479" }, { "page": "487" }, { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0475-01" ] }, { "cite": "679 N.E.2d 393", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "400-01" } ], "opinion_index": 0 }, { "cite": "287 Ill. App. 3d 1003", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521037 ], "year": 1997, "pin_cites": [ { "page": "1013" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/1003-01" ] }, { "cite": "634 N.E.2d 749", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "750" } ], "opinion_index": 0 }, { "cite": "158 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780298 ], "year": 1994, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0465-01" ] }, { "cite": "669 N.E.2d 1189", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1191" } ], "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 161", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182788 ], "year": 1996, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0161-01" ] } ], "analysis": { "cardinality": 1184, "char_count": 29438, "ocr_confidence": 0.732, "pagerank": { "raw": 6.391342495904715e-08, "percentile": 0.3958425761501925 }, "sha256": "4c9c9cb4b61f33f05f11ff684d365df2d06afe71918587c24aa59c163ec0b10e", "simhash": "1:93295134d6f6a4b0", "word_count": 4688 }, "last_updated": "2023-07-14T19:57:06.765456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McNULTY and McBRIDE, JJ., concur." ], "parties": [ "FRANKLIN CROSS, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GORDON\ndelivered the opinion of the court:\nPlaintiff, Franklin Cross, was discharged from his position as a probationary laborer in the Chicago Department of Water. He subsequently brought this action alleging that his discharge had been in retaliation for exercising his rights pursuant to the Workers\u2019 Compensation Act (820 ILCS 305/1 et seq. (West 2002)). After discovery, defendant, the City of Chicago (the city), filed its first motion for summary judgment, arguing that plaintiff had adduced no evidence establishing a causal connection between the exercise of his rights under the Workers\u2019 Compensation Act and his termination. The circuit court granted the city\u2019s motion. We reversed and remanded, holding that a question of fact existed on that issue.\nOn remand, the parties filed cross-motions for summary judgment. The city argued that under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1 \u2014 101 et seq. (West 2002)) (hereinafter Tort Immunity Act), it is immune from liability for discretionary policy choices regarding whether to terminate its probationary personnel. Plaintiff argued that the evidence established each element of retaliatory discharge as a matter of law. The circuit court granted the city\u2019s motion and denied plaintiffs cross-motion. Plaintiff now appeals. For the reasons that follow, we affirm the judgment of the circuit court.\nBACKGROUND\nThe underlying facts of this case were set out in detail in our order deciding the previous appeal in this matter. Cross v. City of Chicago, No. 1\u201496\u20141857 (September 10, 1997) (unpublished order under Supreme Court Rule 23) (hereinafter Cross I). As a result, we will only briefly summarize them here.\nThe record shows that on August 10, 1992, plaintiff was hired as a probationary career service laborer in the Chicago Department of Water (water department). As a probationary employee, plaintiff was required to successfully complete a six-month probationary period. By October of 1992, plaintiffs immediate supervisors and his district foreman, Robert Green, had filed reports documenting what they regarded as plaintiffs poor work performance, bad attitude, sexually harassing conduct, and insubordination. In those reports, plaintiff was described as a worker whose behavior was disruptive, who lacked motivation, and whose work was substandard. On October 30, 1992, Green forwarded the reports and his own memorandum to first deputy commissioner Donald Tomczak. On November 2, 1992, deputy commissioner Tomczak forwarded the reports to water department commissioner John Bolden, who had the ultimate authority to terminate the employment of probationary career service employees of the water department. With the reports, deputy commissioner Tomczak included his own recommendation that plaintiff be terminated immediately. On November 4, 1992, Commissioner Bolden responded with a memorandum ordering that plaintiff be suspended without pay for 29 days and that he be strongly reprimanded.\nMeanwhile, plaintiff filed a report claiming that he sustained an on-the-job injury on October 26, 1992, while he was excavating. Plaintiff had not reported the injury to his supervisor until October 28, 1992. In the injury report, plaintiffs supervisor indicated that he was not satisfied that the injury had occurred in the course of plaintiffs employment. Beginning October 28, 1992, plaintiff was examined and treated at MercyWorks Occupational Medicine Center. He was placed on duty disability on November 4, 1992.\nOn November 5, 1992, the day after Commissioner Bolden ordered plaintiffs suspension, Bolden received a copy of plaintiffs October 28, 1992, injury report. Based on the supervisor\u2019s indication that the injury was not work-related, Commissioner Bolden suggested further investigation of plaintiffs claimed injury.\nOn November 20, 1992, the Chicago city council\u2019s committee on finance (the Committee), which administers workers\u2019 compensation in Chicago through its bureau of workmen\u2019s compensation, denied plaintiff\u2019s claim for temporary total disability benefits because it believed that the medical condition for which plaintiff was requesting benefits was not causally connected to the alleged on-the-job injury. The Committee made this determination based, in part, on medical reports. The treating physician\u2019s report from MercyWorks indicated that plaintiff\u2019s reported symptoms were not consistent with the physician\u2019s own findings. The report also noted that plaintiff appeared to be magnifying his symptoms. In addition, plaintiff failed to appear for at least three of his scheduled appointments in a two-week period. The Committee also relied on a statement of plaintiffs coworker, Ed Formas, who worked with plaintiff on the date of the alleged injury. Formas stated that plaintiff had flagged traffic on the day of the alleged injury, plaintiff had not engaged in any excavation, and plaintiff had not engaged in any other activity that could have caused his injury.\nCommissioner Bolden stated in his affidavit and his deposition testimony that, after being informed of the decision of the Committee and of the bases of that decision, he questioned the veracity of plaintiffs injury report. Bolden\u2019s determination that plaintiff had apparently falsified the injury report led him to reconsider his earlier decision to suspend plaintiff rather than terminate his employment with the city. On November 20, 1992, Bolden decided that plaintiff should be terminated. He stated that his decision was based on the reports of plaintiffs poor work performance, the allegations of sexual harassment, the indications that plaintiff had falsified the injury report, and the additional factor that all of those events had occurred within the first three months of plaintiffs probationary period. On November 30, 1992, Bolden notified the Department of Personnel that he intended to terminate plaintiff effective December 15, 1992, and on December 2, 1992, he signed a letter informing plaintiff of the decision to terminate his employment as a probationary employee with the Department of Water.\nDuring the period between plaintiff\u2019s alleged injury and the termination of his employment, plaintiff filed an \u201cApplication of Adjustment of Claim\u201d (workers\u2019 compensation claim) with the Illinois Industrial Commission (IIC). He apparently did not inform anyone at the city that he had done so, and it is unclear when the city received notice of that filing. The city claims that none of the people involved in the decisions that led to plaintiffs discharge were aware, at the time the decisions were made, that plaintiff intended to file or had already filed a claim with the IIC. In his affidavit, Commissioner Bolden stated that at the time of the termination decision, he had no knowledge or information that plaintiff intended to file or had filed a workers\u2019 compensation claim. Foreman Green stated in his affidavit that when he submitted the reports and his memorandum regarding plaintiffs on-the-job conduct, he had no knowledge or information that plaintiff intended to file or had filed a workers\u2019 compensation claim. The city subsequently settled plaintiffs worker\u2019s compensation claim with a lump-sum payment.\nOn or about September 3, 1993, plaintiff filed this lawsuit. Plaintiff alleged that he was discharged in retaliation for exercising his rights under the Workers\u2019 Compensation Act. After discovery, the city filed its first motion for summary judgment, arguing that plaintiff had come forward with no evidence that he was discharged in retaliation for filing a workers\u2019 compensation claim. The circuit court granted the city\u2019s motion. In Cross I, we reversed the judgment of the circuit court and held that a retaliatory motive could be inferred from the timing of plaintiffs termination and that the city\u2019s settlement of plaintiffs workers\u2019 compensation claim was at least some evidence that he was not terminated for filing a fraudulent claim, but in retaliation for exercising his rights. Cross I, slip op. at 9-10. The matter was remanded for the resolution of that question of fact. Cross I, slip op. at 10.\nOn remand, plaintiff filed a motion for partial summary judgment, and the city filed a second motion for summary judgment. The city argued that it is immune from liability for the commissioner\u2019s discretionary policy choices regarding whether to terminate probationary personnel. The circuit court initially denied the city\u2019s motion. After the city moved to reconsider, the court granted summary judgment for the city. Plaintiff now appeals.\nANALYSIS\nSummary judgment is proper where the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See, e.g., 735 ILCS 5/2 \u2014 1005(c) (West 2002); Khalil v. City of Chicago, 283 Ill. App. 3d 161, 162, 669 N.E.2d 1189, 1191 (1996). The grant of summary judgment is reviewed de novo (see Delaney v. McDonald\u2019s Corp., 158 Ill. 2d 465, 467, 634 N.E.2d 749, 750 (1994)), and the evidence must be construed in the light most favorable to the nonmoving party (see In re Estate of Roeseler, 287 Ill. App. 3d 1003, 1013, 679 N.E.2d 393, 400-01 (1997)).\nPlaintiff contends on appeal that in light of Commissioner Bolden\u2019s admissions that plaintiffs filing of the injury report was a cause of plaintiffs discharge, there exists no question of fact that plaintiff was terminated for exercising his rights guaranteed under the Workers\u2019 Compensation Act (820 ILCS 305/1 et seq. (West 2002)) and, therefore, his discharge violated a clear mandate of public policy. The city, on the other hand, contends that plaintiffs claim was barred by sections 2 \u2014 201 and 2 \u2014 109 of the Tort Immunity Act (745 ILCS 10/ 2 \u2014 201, 2 \u2014 109 (West 2002)), which provide immunity to governmental entities for discretionary policy decisions.\nSection 2 \u2014 201 of the Tort Immunity Act provides:\n\u201cExcept as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not hable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.\u201d 745 ILCS 10/2 \u2014 201 (West 2002).\nSection 2 \u2014 109 of the Tort Immunity Act extends this protection to local governments by providing that a local public entity is not liable for an \u201cinjury resulting from an act or omission of its employee where the employee is not liable.\u201d 745 ILCS 10/2 \u2014 109 (West 2002). Our supreme court held that \u201cthis broad discretionary immunity applies to the [local public] entities themselves.\u201d Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 484, 763 N.E.2d 756, 762-63 (2002). The city thus argues that, by its plain language, the Tort Immunity Act immunizes the city from liability resulting from Commissioner Bolden\u2019s discretionary decision to discharge plaintiff.\nPlaintiff disagrees with the city\u2019s position that the city is permitted, under the Tort Immunity Act, to violate public policy and engage in conduct otherwise prohibited by the Workers\u2019 Compensation Act. To the contrary, plaintiff argues that an action for retaliatory discharge may be maintained against a governmental body. Plaintiff specifically relies on the statutory protection against retaliatory discharge for filing a workers\u2019 compensation claim, under section 4(h) of the Workers\u2019 Compensation Act. The relevant portion of section 4(h) of the Workers\u2019 Compensation Act provides:\n\u201cIt shall be unlawful for any employer *** to discharge or to threaten to discharge, or to refuse to rehire or recall *** an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.\u201d 820 ILCS 305/4(h) (West 2002).\nPlaintiff argues that the Tort Immunity Act and the Workers\u2019 Compensation Act do not conflict and, when read together, clearly subject governmental bodies to liability for retaliatory discharge. Plaintiff maintains that the legislature, in passing the Tort Immunity Act, did not intend to insulate governmental entities from the mandates of the Workers\u2019 Compensation Act, as evidenced by the express language of the Tort Immunity Act, which states in pertinent part:\n\u201cNothing in this Act affects the right to obtain relief other than damages against a local public entity or public employee. Nothing in this Act affects the liability, if any, of a local public entity or public employee based on:\nc). The \u2018Workers\u2019 Compensation Act\u2019, approved July 9, 1951, as heretofore or hereafter amended.\u201d (Emphasis added.) 745 ILCS 10/ 2 \u2014 101 (West 2002).\nIn the alternative, if the two statutes could be seen to be in conflict, plaintiff argues that this court must attempt to reconcile the words of the statutes to bring to fruition the intent of the legislature, which was not to insulate governmental entities from liability for violating the Workers\u2019 Compensation Act. Plaintiff emphasizes that section 2 \u2014 201 of the Tort Immunity Act, principally relied on by the city, is a general statement of immunity and specifically recognizes that other statutory provisions may avoid its terms, since it contains a qualifier \u201c[e]xcept as otherwise provided by Statute.\u201d Plaintiff thus argues that we should recognize the specific protection of the Workers\u2019 Compensation Act to prevail over the general grant of immunity under the Tort Immunity Act. Plaintiff, in sum, urges that the Tort Immunity Act should be interpreted narrowly, so as to not insulate the city from liability for violating the Workers\u2019 Compensation Act, and that the contrary interpretation would render the protections created by the Workers\u2019 Compensation Act a mere illusory promise to governmental workers.\nPlaintiff overlooks the important policy considerations embodied in the Tort Immunity Act. The Tort Immunity Act serves to protect local public entities and public employees from liability arising from the operation of government. 745 ILCS 10/1 \u2014 101.1(a) (West 2002); Arteman, 198 Ill. 2d at 479, 763 N.E.2d at 760. Since the operation of government necessarily encompasses the policy decisions made by a municipality (West v. Kirkham, 147 Ill. 2d 1, 11, 588 N.E.2d 1104, 1109 (1992)), it follows that 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. Indeed, our supreme court has cautioned against a construction of the Tort Immunity Act that would entail \u201csecond-guessing\u201d these important judgment calls or would require the decision maker to be \u201cmore concerned with avoiding possible litigation than with using his best judgment to properly balance the competing interests.\u201d West, 147 Ill. 2d at 12, 588 N.E.2d at 1109.\nFurther, we disagree with plaintiffs couching his claim as one \u201cbased on\u201d the Workers\u2019 Compensation Act. As the city points out, plaintiffs position has a fatal flaw. Plaintiff presupposes that his claim is statutory in nature and, therefore, is not barred by the Tort Immunity Act. Indeed, it would so appear from the language of section 4(h) of the Workers\u2019 Compensation Act. However, as our supreme court has stated, \u201cnothing in section 4(h) expressly provides a remedy for an employee *** in the event that the terms of section 4(h) are violated.\u201d Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 34-35, 645 N.E.2d 877, 880 (1994). Rather, as the court in Zimmerman explained, the remedy lies in a tort action, namely, the common law tort of retaliatory discharge first recognized by our supreme court in Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 181, 384 N.E.2d 353, 357 (1978). See Zimmerman, 164 Ill. 2d at 33-34, 645 N.E.2d at 879.\nThis conclusion is corroborated by the fact that our supreme court did not limit the right of action for retaliatory discharge to the workers\u2019 compensation setting alone, but extended that right to discharges based on other grounds as well, so long as those other grounds were protected by \u201cclearly mandated public policy.\u201d See, e.g., Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981). There, the supreme court extended the tort of retaliatory discharge beyond its workers\u2019 compensation origins to provide a remedy to an employee fired for reporting criminal activity of a coworker. The court explained:\n\u201cBy recognizing the tort of retaliatory discharge, Kelsay acknowledged the common law principle that parties to a contract may not incorporate in it rights and obligations which are clearly injurious to the public. (See People ex rel. Peabody v. Chicago Gas Trust Co. (1889), 130 Ill. 268, 294.) This principle is expressed forcefully in cases which insist that an employer is in contempt for discharging an employee who exercises the civic right and duty of serving on a jury. (People v. Vitucci (1964), 49 Ill. App. 2d. 171, 172; People v. Huggins (1930), 258 Ill. App. 238, 243; see also Ill. Rev. Stat. 1979, ch. 38, par. 155\u20143 (making it a contempt of court to fire or discipline an employee for attending court when subpoenaed as a witness).) *** When a discharge contravenes public policy in any way the employer has committed a legal wrong. However, the employer retains the right to fire workers at will in cases \u2018where no clear mandate of public policy is involved\u2019 (Leach v. Lauhoff Grain Co. (1977), 51 Ill. App. 3d 1022, 1026).\u201d Palmateer, 85 Ill. 2d at 129-30, 421 N.E.2d at 878.\nAccord Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502, 485 N.E.2d 372 (1985) (former employee stated a cause of action for retaliatory discharge, where he was terminated in retaliation for refusing to work in the handling of a live radioactive substance, while the operations were conducted in violation of federal regulations promulgated by the Nuclear Regulatory Commission).\nPlaintiff urges that in the case of Boyles v. Greater Peoria Mass Transit District, 113 Ill. 2d 545, 499 N.E.2d 435 (1986), our supreme court explicitly permitted a suit for retaliatory discharge against a local public entity, notwithstanding the immunity provisions of section 2 \u2014 201 of the Tort Immunity Act. Plaintiffs reliance on Boyles is misplaced. In Boyles, a former employee of the mass transit district brought an action against the district and other defendants, alleging that she was discharged in retaliation for filing a claim under the Workers\u2019 Compensation Act and seeking compensatory and punitive damages. Boyles, 113 Ill. 2d at 547, 499 N.E.2d at 435. The plaintiff was a union member covered by a collective bargaining agreement. Boyles, 113 Ill. 2d at 551, 499 N.E.2d at 437. The district moved to dismiss the two counts of the complaint pertaining to it, arguing that the tort of retaliatory discharge is available only to persons employed at will, and not to employees, such as the plaintiff, who were protected by a collective bargaining agreement. Boyles, 113 Ill. 2d at 548, 499 N.E.2d at 436. The trial court denied the district\u2019s motion, but certified for interlocutory appeal the question as to whether an employee covered by a collective bargaining agreement providing grievance and arbitration procedures for wrongful discharge could maintain a common law action for retaliatory discharge against the employer. Boyles, 113 Id. 2d at 548, 499 N.E.2d at 436.\nWhile Boyles was pending on interlocutory appeal in the appellate court, our supreme court announced its decision in Midgett v. SackettChicago, Inc., 105 Ill. 2d 143, 473 N.E.2d 1280 (1984), answering the same question as that certified by the trial court in Boyles in the affirmative, that a union employee may bring a cause of action for retaliatory discharge, independent of the employee\u2019s coUective bargaining agreement. Midgett, 105 Ill. 2d at 150, 473 N.E.2d at 1283-84. The appellate court granted the district leave to file a supplemental brief setting forth its position in view of Midgett. Boyles, 113 Ill. 2d at 548-49, 499 N.E.2d at 436. This time, the district argued that the rationale underlying Midgett was to allow both the union and \u201cat-will\u201d employees to seek punitive damages. Boyles, 113 Ill. 2d at 549, 499 N.E.2d at 436. The district maintained that because it was not subject to punitive damages under section 2 \u2014 102 of the Tort Immunity Act, no cause of action should lie. Boyles, 113 Ill. 2d at 549, 499 N.E.2d at 436. In Midgett, our supreme court had emphasized the significance of allowing punitive damages against the offending employer, explaining that in the absence of punitive damages, the employee\u2019s remedy is incomplete and there is little to discourage the practice of retaliatory discharge. Midgett, 105 Ill. 2d at 149-50, 473 N.E.2d at 1283-84. The appellate court disagreed that the district\u2019s position was supported by Midgett. Boyles, 113 Ill. 2d at 549, 499 N.E.2d at 436.\nThe district subsequently appealed to the supreme court. The original question certified by the trial court was thus broadened to encompass two issues: (1) whether the district, as a municipal corporation and pursuant to section 2 \u2014 102 of the Tort Immunity Act, was immune from punitive damages, and (2) if immune from punitive damages, could it \u201cstill be sued for the tort of retaliatory discharge.\u201d Boyles, 113 Ill. 2d at 549, 499 N.E.2d at 436. On the first issue, our supreme court held that, regardless of whether the plaintiff could prove discharge in retaliation for filing a workers\u2019 compensation claim, section 2 \u2014 102 of the Tort Immunity Act precluded the plaintiff from recovering punitive damages from the district. Boyles, 113 Ill. 2d at 554, 499 N.E.2d at 439. On the second issue, the court held:\n\u201c[Ujnder 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.\u201d Boyles, 113 Ill. 2d at 555-56, 499 N.E.2d at 439.\nIt is this passage that plaintiff chiefly relies on in support of his position.\nIt is clear from the foregoing that plaintiffs reliance on Boyles is misleading. As noted, the procedural context in Boyles was the disposition of issues certified for interlocutory appeal. Accordingly, Boyles only considered whether a municipal corporation was subject to punitive damages and, if not, whether as a consequence, given the reasoning of the supreme court in Midgett, there would be any viability to an action limited solely to compensatory damages. As noted, the court in Midgett had explained that, in the absence of punitive damages, the employee\u2019s remedy is incomplete and there is little to discourage the practice of retaliatory discharge:\n\u201c \u2018In the absence of the deterrent effect of punitive damages there would be little to dissuade an employer from engaging in the practice of discharging an employee for filing a workmen\u2019s compensation claim[.] *** The imposition on the employer of the small additional obligation to pay a wrongfully discharged employee compensation would do little to discourage the practice of retaliatoiy discharge, which mocks the public policy of this State ***[.] In the absence of other effective means of deterrence, punitive damages must be permitted ***.\u2019 \u201d Midgett, 105 Ill. 2d at 149-50, 473 N.E.2d at 1283, quoting Kelsay, 74 Ill. 2d at 186-87, 384 N.E.2d at 359.\nConsequently, having decided, as noted above, that the plaintiff in Boyles was precluded under section 2 \u2014 102 of the Tort Immunity Act from recovering punitive damages, our supreme court then proceeded to respond to the second issue by stating that the unavailability of punitive damages does not preclude the maintenance of an action for retaliatory discharge \u201cunder appropriate circumstances.\u201d Boyles, 113 Ill. 2d at 555-56, 499 N.E.2d at 439.\nIn light of the foregoing statement, it cannot be said that our supreme court intended to limit the immunity of a local public entity to exemption from punitive damages under section 2 \u2014 102 and not permit the protection of the general immunity provisions of section 2 \u2014 201. In that regard, we note that the question of general immunity under section 2 \u2014 201 was never certified on appeal and the supreme court never purported to consider or discuss the impact of that section. Moreover, nothing in Boyles\u2019 discussion and holding is inconsistent with the potential applicability of section 2 \u2014 201. In this respect, it is important to remember that the immunity of section 2 \u2014 201 is not all-pervasive, but only applies to protect a governmental entity and its employees from liability for an injury resulting from an act of a public employee in the exercise of a discretionary policy determination. See Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341, 692 N.E.2d 1177, 1181 (1998) (both elements are required \u2014 a determination of policy and an exercise of discretion). In contrast, ministerial acts are generally not entitled to immunity. See In re Chicago Flood Litigation, 176 Ill. 2d 179, 194, 680 N.E.2d 265, 272 (1997).\nWith the foregoing in mind, it becomes clear that in holding that there is a right to compensatory damages \u201cunder appropriate circumstances,\u201d Boyles is in all likelihood alluding to those circumstances that are not precluded under section 2 \u2014 201, namely, where the firing was ministerial. The whole purpose of that statement was not designed to elucidate the circumstances which would permit compensatory damages to be recovered but rather to establish that, contrary to district\u2019s argument, the right to compensatory damages is not wedded to the right to punitive damages. Because, as noted, the issue of immunity under section 2 \u2014 201 was not raised on appeal, Boyles left the boundaries of the preclusive effect of that section open-ended, but indicating only that there are circumstances where an employee\u2019s action for retaliatory discharge against a local public entity employer may not be barred.\nWe further note that if plaintiffs interpretation of Boyles was given credence, it would eliminate the applicability of section 2 \u2014 201 with respect to any action for retaliatory discharge against a governmental entity. Such construction would fly in the face of the clear subsequent holdings of our supreme court that an action for retaliatory discharge, even discharge in retaliation for filing a workers\u2019 compensation claim, is a common law tort (Zimmerman, 164 Ill. 2d at 45, 645 N.E.2d at 885), which would clearly be covered by the general immunity provisions of section 2 \u2014 201. Any attempt to preclude the application of those immunity provisions would \u201cimpermissibly elevatet ] a common law duty over an applicable statutory immunity.\u201d Arteman, 198 Ill. 2d at 487, 763 N.E.2d at 764. In Arteman the supreme court stated:\n\u201c[W]e lack the power to restrict the [Tort Immunity] Act\u2019s protective scope *** (see Henrich [v. Libertyville High School], 186 Ill. 2d [381,] 394 [(1998)] (\u2018The responsibility for the justice or wisdom of legislation rests upon the legislature\u2019); Kozak v. Retirement Board of the Firemen's Annuity & Benefit Fund, 95 Ill. 2d 211, 220 (1983) (statutes should not be rewritten by this court to conform to its idea of public policy)).\u201d Arteman, 198 Ill. 2d at 488, 763 N.E.2d at 765.\nIt would thus be anomalous to suppose that the supreme court in Boyles intended to casually override the applicability of section 2 \u2014 201 without ever discussing that section or attempting to explain or justify its reasons for doing so.\nLastly, we note that in his briefs on appeal plaintiff neither raised nor argued that the city\u2019s act in firing him would otherwise fall outside the protective ambit of section 2 \u2014 201, namely, that the firing was not the result of a discretionary policy determination. Accordingly, this argument, which is not otherwise meritorious, is in any event waived pursuant to Rule 341(e)(7) (188 Ill. 2d R. 341(e)(7) (points not argued are waived)).\nFor the reasons set forth above, the city is immune, as a matter of law, from liability for Commissioner Bolden\u2019s decision to terminate plaintiff. Accordingly, we affirm the judgment of the circuit court.\nAffirmed.\nMcNULTY and McBRIDE, JJ., concur.\nSee Cross v. City of Chicago, No. 1\u201496\u20141857 (September 10, 1997) (unpublished order under Supreme Court Rule 23).\nSee Chicago Municipal Code \u00a7\u00a7 2\u2014152\u2014420 to 2\u2014152\u2014450 (2001).\nPursuant to Rule 308 (87 Ill. 2d R. 308).\nSection 2 \u2014 102 of the Tort Immunity Act provided at that time:\n\u201cNotwithstanding any other provision of law, a local public entity is not liable to pay punitive or exemplary damages in an action brought directly against it by the injured party.\u201d Ill. Rev. Stat. 1983, ch. 85, par. 2 \u2014 102.", "type": "majority", "author": "JUSTICE GORDON" } ], "attorneys": [ "Robert A. Wolf and John W Norris, both of Wolf & Norris, of Chicago, for appellant.", "Mara S. Georges, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Suzanne M. Loose, Assistant Corporation Counsel, of counsel), for appellee." ], "corrections": "", "head_matter": "FRANKLIN CROSS, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1\u201403\u20140408\nOpinion filed August 30, 2004.\nRobert A. Wolf and John W Norris, both of Wolf & Norris, of Chicago, for appellant.\nMara S. Georges, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Suzanne M. Loose, Assistant Corporation Counsel, of counsel), for appellee." }, "file_name": "0001-01", "first_page_order": 19, "last_page_order": 31 }