Hicks v. Resolution Trust Corp.

970 F.2d 378, 1992 WL 187283
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 7, 1992
DocketNo. 91-2587
StatusPublished
Cited by40 cases

This text of 970 F.2d 378 (Hicks v. Resolution Trust Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hicks v. Resolution Trust Corp., 970 F.2d 378, 1992 WL 187283 (7th Cir. 1992).

Opinion

KANNE, Circuit Judge.

The primary question raised, in this appeal is whether, under Illinois law, an employee can maintain an action for retaliatory discharge when he alleges that he was terminated for urging his employer’s compliance with the Federal Community Reinvestment Act, 12 U.S.C. § 2901, et seq. On the employer’s motion to dismiss, the district court below ruled that such a claim was not actionable because the Federal Community Reinvestment Act does not articulate a clearly mandated public policy of the state of Illinois. We affirm.

The complaint alleges the following facts, which we must take as true for purposes of this appeal. Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir.1990). The plaintiff, John Hicks, was employed as Vice President and Manager of Mortgage Lending at Clyde Federal Savings and Loan Association. As Vice President he was responsible for making sure that Clyde Federal complied with the Community Reinvestment Act, a federal act designed to help meet the credit needs of local communities. Briefly stated, the Community Reinvestment Act requires lending institutions to advertise and make available mortgages for low and moderate income markets. To ensure enforcement, the Federal Home Loan Bank Board (“FHLBB”) is empowered with the authority to promulgate additional regulations and to conduct periodic investigations of each institution and its mortgage policies. Only the FHLBB may determine whether a lending institution is in compliance with the Reinvestment Act.

On February 16, 1987, Hicks provided the FHLBB examiners with a written report indicating that Clyde Federal was violating Community Reinvestment Act regulations. Specifically, Hicks’ report alleged that Clyde Federal had made no investments in minority neighborhood projects; that it was not marketing any VA or FHA loans to minority groups; and that it was advertising only in a local northwest community paper and a magazine circulated to mortgage bankers, financial institutions and realtors. FHLBB examiners met with Hicks several days later and discussed Clyde Federal’s noncompliance in greater detail. When Clyde Federal finally learned of Hick’s communications with the FHLBB, its response was swift and severe — Hicks was fired.

Shortly after his termination, Hicks filed this suit against Clyde Federal and its Board of Directors.1 His third amended complaint alleged only one count: that the defendants fired him in retaliation for informing the FHLBB that Clyde Federal was violating the Community Reinvestment Act.2 In response, the defendants filed a motion to dismiss Hicks’ complaint for failure to state a cause of action which would entitle him to relief under Illinois law. The defendants’ motion was granted. According to District Judge George Lindberg, the federal Community Reinvestment Act did not articulate a clearly mandated public policy of the State of Illinois — one of the three elements necessary to a retaliatory discharge claim — and thus Hicks’ claim had to be dismissed. In so doing, however, [381]*381Judge Lindberg overruled a previous determination by former District Judge Nicholas Bua that the Reinvestment Act evinced a public policy which could form the basis for a retaliatory discharge claim. Judge Lind-berg reasoned:

While the doctrine of the law of the case suggests that the court should refrain from reconsidering a prior ruling in the same case, the law of the case is a discretionary doctrine and is not designed to perpetuate error. Champaign-Urbana New Agency, Inc. v. J.L. Cummins News Co., Inc., 632 F.2d 680 (7th Cir.1980). Whereas here, the court is convinced that the prior ruling was clearly erroneous, the court should not hesitate to correct error.

Hicks v. Resolution Trust Corp., 736 F.Supp. 812, 814 (N.D.Ill.1990).

Hicks in turn filed a fourth amended complaint, with leave of the court. Count I alleged a conspiracy to violate civil rights and sought relief under 42 U.S.C. §§ 1985(3) and 1986; Count II asserted a violation of 12 U.S.C. § 1831j, a statute which prohibits discrimination against whistleblowers; and Count III stated a pendent claim for intentional infliction of emotional distress. None of these claims met with any greater success. Counts I and III were dismissed on the defendants’ motion, and the court granted summary judgment in favor of the defendants on Count II because Hicks could not disprove his own participation in Clyde Federal’s alleged violations of the Reinvestment Act. 767 F.Supp. 167. This appeal followed.

The primary issue for our resolution today is whether the district court properly dismissed Hicks’ retaliatory discharge claim in his third amended complaint. To state a viable claim for retaliatory discharge in Illinois, Hicks had to prove three things: (1) that he had been discharged; (2) that his discharge was in retaliation for his activities; and (3) that his discharge violated a clearly mandated public policy of the state of Illinois. Hinthorn v. Roland’s of Bloomington, Inc., 119 Ill.2d 526, 116 Ill. Dec. 694, 696, 519 N.E.2d 909, 911 (1988); Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 88 Ill.Dec. 628, 632, 478 N.E.2d 1354, 1358 (1985). Hicks now contends that Judge Lindberg erred in concluding that his claim failed to establish the third element — a violation of a clearly mandated Illinois policy. Although he concedes that the Community Reinvestment Act is a federal law, he asserts that its stated purpose — to regulate financial institutions for the benefit of all local communities — delineates a policy which enjoys equal recognition under the laws of Illinois. Thus he concludes that Judge Bua’s earlier determination should be enforced under the law of the case.

Illinois courts have repeatedly expressed their reluctance to expand the tort of retaliatory discharge, Ludwig v. C & A Wallcoverings, Inc., 960 F.2d 40 (7th Cir.1992), and nowhere has this been more apparent than with respect to the “public policy” element.3 As the Illinois Supreme Court pointed out in Barr v. Kelso-Burnett, simply citing a constitutional or statutory provision in the complaint is not enough. Barr, 88 Ill.Dec. at 631, 478 N.E.2d at 1357 (no action for retaliatory discharge where claimant merely relied on the public policy expressed under the federal and state constitutional rights of free speech and due process). Rather, the policy identified in the complaint must either “strike at the heart of a citizen’s social rights, duties and responsibilities before the tort will be allowed,” Palmateer v. International Harvester Co., 52 Ill.Dec. at 15-16, 421 N.E.2d at 878-79 (1981), or involve the protection of each citizen’s health and safety. Wheeler v. Caterpillar Trac[382]

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970 F.2d 378, 1992 WL 187283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-resolution-trust-corp-ca7-1992.