                       Docket No. 104960.


                       IN THE
                  SUPREME COURT
                         OF
                THE STATE OF ILLINOIS




GREGORY A. SMITH, Appellant, v. WAUKEGAN PARK
              DISTRICT, Appellee.

Opinion filed April 17, 2008.– Modified Upon Denial of Rehearing
                        September 22, 2008.



   JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
   Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,
Karmeier, and Burke concurred in the judgment and opinion.



                            OPINION

    Plaintiff, Gregory Smith, sued his employer, the Waukegan Park
District, in the circuit court of Lake County, alleging the District
discharged him in retaliation for filing a workers’ compensation
claim. The District filed a motion to dismiss pursuant to section
2–619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS
5/2–619(a)(9) (West 2002)), claiming immunity pursuant to the Local
Governmental and Governmental Employees Tort Immunity Act
(Tort Immunity Act) (745 ILCS 10/1–101 et seq. (West 2002)). The
circuit court granted the motion to dismiss, and the appellate court
affirmed the dismissal. 373 Ill. App. 3d 626. We allowed Smith’s
petition for leave to appeal (210 Ill. 2d R. 315). We now reverse and
remand.

                    I. FACTUAL BACKGROUND
    In his complaint against the District, Smith alleged he was a
seasonal park maintenance employee for the District and performed
his work satisfactorily. He suffered a work-related injury on May 8,
2002, requiring medical treatment and time off work. Smith filed a
claim under the Workers’ Compensation Act (820 ILCS 305/1 et seq.
(West 2002)).
    On June 24, 2002, Smith returned to work and the District
insisted he submit to a drug and alcohol test. Smith refused. Smith
alleged the drug-test demand was “retaliatory harassment” for filing
a workers’ compensation claim. After Smith’s refusal, District
supervisor Mike Trigg informed Smith by letter that he was
terminated effective June 24 for his failure to take the drug and
alcohol test.
    The District responded to the complaint by filing a motion to
dismiss under section 2–619(a)(9) of the Code. The motion asserted
immunity from Smith’s claim of retaliatory discharge under section
2–109 of the Tort Immunity Act (745 ILCS 10/2–109 (West 2002)).
Specifically, the District argued section 2–109 provided immunity to
local public entities when the entity’s employee could not be held
liable for the act or omission causing the alleged injury. Under our
holding in Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12
(1998), the District asserted that individual employees are not liable
for retaliatory discharge. Since Trigg could not be held liable for the
decision to fire Smith, the District argued it could not be held liable.
    Alternatively, the District contended it would not be liable since
it enjoyed discretionary immunity under the combined effect of
sections 2–201 and 2–109 because section 2–201 of the Tort
Immunity Act (745 ILCS 10/2–201 (West 2002)) provides immunity
to governmental employees for their acts or omissions involving
discretion or determination of policy. In support of its contention that
Trigg’s firing of Smith was a discretionary act and a determination of
policy, the District attached Trigg’s affidavit.



                                  -2-
    Trigg’s affidavit averred the District’s drug and alcohol testing
policy permits testing an employee if the District has reasonable
suspicion that the employee is under the influence of drugs or alcohol.
In processing the workers’ compensation claim, the District received
a medical record indicating Smith used marijuana every morning and
evening. Smith was then asked to take a drug test. Smith’s statement
to his doctor, admitting daily marijuana use, indicated to Trigg that
Smith came to work after smoking marijuana. Therefore, Trigg
thought he had the reasonable suspicion necessary to demand a drug
test.
    After Smith’s refusal, Trigg terminated Smith. In deciding to
terminate Smith, Trigg considered several factors: public safety in
light of Smith’s marijuana use; the legal and financial risks to the
District presented by Smith potentially operating vehicles and other
equipment while under the influence; public loss of confidence in the
District if Smith were to harm someone while under the influence,
especially in light of the District’s prior knowledge of Smith’s drug
use; and the deterrent effect Smith’s firing would have on other
District employees.
    The circuit court granted the District’s motion to dismiss Smith’s
complaint with prejudice. Smith appealed and the appellate court
affirmed. 373 Ill. App. 3d 626. The appellate court held the District
immune from suit under section 2–109 of the Tort Immunity Act (745
ILCS 10/2–109 (West 2002)). In particular, the appellate court
determined that since retaliatory discharge claims can only lie against
employers and not supervisory employees, public entities can never
be liable for retaliatory discharge because public entities cannot be
liable when its employees are not liable. 373 Ill. App. 3d at 629.

                            II. ANALYSIS
    This case requires us to address whether public entities enjoy
immunity under the Tort Immunity Act against claims of retaliatory
discharge for exercising workers’ compensation rights. The existence
and preclusive effect of tort immunity are properly raised in a section
2–619(a)(9) motion to dismiss. Van Meter v. Darien Park District,
207 Ill. 2d 359, 367 (2003). We review the dismissal of a complaint
pursuant to section 2–619(a)(9) de novo. Glisson v. City of Marion,


                                 -3-
188 Ill. 2d 211, 220 (1999). We also review construction of the Tort
Immunity Act de novo. Barnett v. Zion Park District, 171 Ill. 2d 378,
385 (1996).
    We first analyze the appellate court’s basis for finding the District
immune. The appellate court held the District immune solely under
section 2–109 relying on our holding in Buckner that only the
municipal employer, and not its employees, may be liable for the tort
of retaliatory discharge.
    Smith agrees with the appellate court’s view of Buckner that a
decision to terminate an employee in retaliation for filing a workers’
compensation claim belongs only to the employer, not to the
supervising employee. Smith disagrees, however, with the appellate
court’s conclusion that Buckner thereby precludes all retaliatory
discharge claims because public employers cannot be liable when
their employees are not liable. Smith stresses that the specific
language of section 2–109 relieves a public entity from liability only
when the employee’s “act or omission” caused the injury, and the
employee cannot be held liable. According to Smith, Buckner actually
removes section 2–109 from consideration because it establishes that
the employee never “acts” in a case of retaliatory discharge.
    In Buckner, we squarely addressed “whether a plaintiff may bring
a retaliatory discharge action against the employee or agent of his
former employer who effected the discharge on behalf of the
employer.” Buckner, 182 Ill. 2d at 16. In rejecting the plaintiff’s
argument in Buckner that he could sue his former supervisor, we
pointed out that even if an employee “devise[s] the plan” to discharge
wrongfully the employee, “the discharge is still authorized by the
employer.” (Emphasis in original.) Buckner, 182 Ill. 2d at 21. We
further noted that the presumed motive for a discharge in retaliation
for the exercise of workers’ compensation rights, namely, the
avoidance of paying workers’ compensation benefits, inured only to
the employer, not the employee carrying out the discharge. Buckner,
182 Ill. 2d at 22. Based on these premises, we ultimately concluded
that general principles of agency law “may not *** be logically
applied to the tort of retaliatory discharge,” and held that “the tort of
retaliatory discharge may be committed only by the employer.”
(Emphasis added.) Buckner, 182 Ill. 2d at 22.


                                  -4-
    As Smith suggests, it is not the public entity’s employee who
causes the retaliatory discharge. Rather, it is the employer. Section
2–109 only grants immunity to a public entity from “an injury
resulting from an act or omission of its employee where the employee
is not liable.” (Emphasis added.) 745 ILCS 10/2–109 (West 2002).
Accordingly, we hold section 2–109 immunity does not apply in cases
of retaliatory discharge because the employer, not the employee,
ultimately causes the injury.
    We foreshadowed today’s decision in Boyles v. Greater Peoria
Mass Transit District, 113 Ill. 2d 545 (1986). In Boyles, we allowed
a municipal employee’s retaliatory discharge claim to proceed,
despite the unavailability of punitive damages against her public
employer, and the existence of possible alternative remedies through
or against her union. We noted our concern that if a union refused to
arbitrate a claim of retaliatory discharge “the plaintiff would be left
without an effective remedy.” Boyles, 113 Ill. 2d at 555. We further
noted that “by forcing the employee to sue her union representative
[prior to bringing a wrongful discharge action], judicial attention
[would be] detracted from the true focus of the complaint; that is,
whether the employee was improperly discharged by her employer.”
Boyles, 113 Ill. 2d at 555. We concluded:
             “[U]nder appropriate circumstances, an employee may
         bring an action for retaliatory discharge against a local public
         entity employer for compensatory damages, even though the
         public entity is not subject to an award of punitive damages.
         Under our holding, only the damages available are restricted;
         the cause of action in tort for retaliatory discharge remains
         unchanged.” Boyles, 113 Ill. 2d at 555-56.
In sum, based on our decision in Buckner, the District is not immune
from liability under section 2–109.
    Next we address the District’s argument that it enjoyed
discretionary immunity under the combined effect of sections 2–201
and 2–109. Section 2–201of the Tort Immunity Act provides:
             “Except as otherwise provided by Statute, a public
         employee serving in a position involving the determination of
         policy or the exercise of discretion is not liable for an injury
         resulting from his act or omission in determining policy when


                                  -5-
         acting in the exercise of such discretion even though abused.”
         745 ILCS 10/2–201 (West 2002).
     This court has recognized “[s]ection 2–201 of the Act offers the
most significant protection afforded to public employees under the
Act.” Arteman v. Clinton Community Unit School District No. 15,
198 Ill. 2d 475, 484 (2002). Additionally, section 2–109 of the Tort
Immunity Act provides: “A local public entity is not liable for an
injury resulting from an act or omission of its employee where the
employee is not liable.” 745 ILCS 10/2–109 (West 2002). Together,
sections 2–201 and 2–109 provide discretionary immunity to public
entities. See Arteman, 198 Ill. 2d at 484 (“Because ‘[a] local public
entity is not liable for an injury resulting from an act or omission of
its employee where the employee is not liable’ [citation], this broad
discretionary immunity applies to the entities themselves”); Village
of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 496
(2001) (“the discretionary immunity doctrine is codified in sections
2–109 and 2–201 of the Act, which provide that ‘a public employee
serving in a position involving the determination of policy or the
exercise of discretion [and, thereby, the local public entity,] is not
liable for an injury resulting from his act or omission in determining
policy when acting in the exercise of such discretion even though
abused’ ”).
     According to the District, section 2–201 immunizes Trigg, and the
District is correspondingly immune pursuant to section 2–109.
However, as demonstrated above, this argument fails because it
incorrectly views the employee as the pertinent actor when it is the
employer who “acts” within the meaning of section 2–109 in a
retaliatory discharge.
     Particularly important in this dispute, we note section 4(h) of the
Workers’ Compensation Act provides: “[i]t shall be unlawful for any
employer *** to discharge *** an employee because of the exercise
of his or her rights or remedies granted to him or her by this Act.”
(Emphasis added.) 820 ILCS 305/4(h) (West 2002). Therefore,
section 4(h) plainly prohibits a retaliatory discharge for the exercise
of workers’ compensation rights. This conclusion is further buttressed
by the legislature’s declaration in section 2–101(c) of the Tort
Immunity Act that “[n]othing in this Act affects the liability, if any,
of a local public entity or public employee, based on: *** [t]he

                                  -6-
‘Workers’ Compensation Act.’ ” 745 ILCS 10/2–101(c) (West 2002).
Without expressing an opinion on firings in general by public entities,
we declare, under established Illinois law, public entities possess no
immunized discretion to discharge employees for exercising their
workers’ compensation rights.
     The District urges us to adopt the contrary reasoning of Cross v.
City of Chicago, 352 Ill. App. 3d 1 (2004). We disagree with Cross
and overrule its holding with our decision today.
     The Cross court concluded discretionary immunity should apply
even when an employer discharges an employee for exercising
workers’ compensation rights. Cross largely based its holding on “the
important policy considerations embodied in the Tort Immunity Act.”
Cross, 352 Ill. App. 3d at 7. Cross determined:
        “decisions by municipal employees about how to best allocate
        resources and go about providing services, including the
        selection of employees who will provide those services for the
        benefit of the public, should not be unduly controlled by the
        threat of a tort judgment.” Cross, 352 Ill. App. 3d at 7.
Cross then noted that this court cautioned against “ ‘second-
guessing’ ” the “important judgment calls” involved in employment
decisions, and that a public employer should not be “ ‘more
concerned with avoiding possible litigation than with using his best
judgment to properly balance the competing interests.’ ” Cross, 352
Ill. App. 3d at 7-8, quoting West v. Kirkham, 147 Ill. 2d 1, 12 (1992).
     We cannot identify what legitimate competing interests are
involved when a public entity decides to violate the clear prohibition
of another enactment of the legislature, namely, section 4(h) of the
Workers’ Compensation Act. Moreover, terminating an employee for
exercising workers’ compensation rights plainly has nothing to do
with “how to best allocate resources and go about providing services
*** for the benefit of the public.” Cross, 352 Ill. App. 3d at 7.
     The District attempts to support the circuit court judgment
dismissing Smith’s complaint by contending the discharge was an act
of discretion and, thus, immunity applies. The District points out that
Smith made no challenge to Trigg’s affidavit. According to the
District, Smith admitted Trigg’s averments that he fired Smith after
considering policy implications and competing interests.

                                 -7-
     Contrary to the District’s assertion, Smith’s purported concession
of the District’s discretionary action in firing him by his failure to
respond to Trigg’s affidavit does not constitute an adequate basis for
the dismissal of Smith’s complaint under section 2–619(a)(9).
“ ‘[S]ection 2–619(a)(9) affords a ‘means of obtaining *** a
summary disposition of issues of law or of easily proved issues of
fact, with a reservation of jury trial as to disputed questions of fact.’
[Citations.]” Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156
Ill. 2d 112, 115 (1993). Dismissal under section 2–619(a)(9) is
appropriate when an affirmative matter bars or defeats the plaintiff’s
claim. Hodge, 156 Ill. 2d at 115. “Affirmative matter” means some
kind of defense “other than a negation of the essential allegations of
the plaintiff’s cause of action.” Hodge, 156 Ill. 2d at 115. The
standard articulation of “affirmative matter” is:
         “[A] type of defense that either negates an alleged cause of
         action completely or refutes crucial conclusions of law or
         conclusion of material fact unsupported by allegations of
         specific fact contained or inferred from the complaint ***
         [not] merely evidence upon which defendant expects to
         contest an ultimate fact stated in the complaint.” 4 R.
         Michael, Illinois Practice §41.7 at 332 (1989).
In fact, a defendant moving for dismissal under section 2–619(a)(9)
otherwise admits the legal sufficiency of the plaintiff’s cause of
action. Hodge, 156 Ill. 2d at 115.
     Here, Trigg’s affidavit attempts, in part, to negate the essential
allegations of Smith’s claim of retaliatory discharge. Trigg’s affidavit
also attempted to show that Smith’s discharge was discretionary
pursuant to an established drug policy. To the contrary, Smith’s
complaint alleges he was fired for exercising workers’ compensation
rights. Smith admits that the reason given by the District for his firing
was his refusal to take a drug test. Nonetheless, Smith asserts this
reason was a pretext intended to obscure his illegal discharge in
retaliation for exercising his workers’ compensation rights.
     Undoubtedly, the existence of tort immunity may be raised in a
section 2–619(a)(9) motion to dismiss. Van Meter, 207 Ill. 2d at 367.
Nonetheless, to invoke immunity through a section 2–619(a)(9)
motion, the District must admit the legal sufficiency of Smith’s
complaint alleging the District discharged Smith in retaliation for the

                                  -8-
exercise of his workers’ compensation rights, but show that the
legislature granted immunity for retaliatory discharge. Instead, the
District highlights a factual dispute surrounding the motivation for
Smith’s firing.
    Since the District possesses no immunized discretion to discharge
employees for exercising workers’ compensation rights, the disputed
basis for the District’s discharge of Smith remains a disputed issue of
fact. Tort immunity in this case depends on the resolution of that
disputed question of fact. See Hodge, 156 Ill. 2d at 115. Therefore,
Smith’s failure to respond to Trigg’s affidavit is not fatal because the
affidavit does not constitute an “affirmative matter” under section
2–619(a)(9). See Hodge, 156 Ill. 2d at 115 (holding an “affirmative
matter” means a defense other than negation of the plaintiff’s
essential allegations).
     We conclude the circuit court erred in granting the District’s
section 2–619(a)(9) motion to dismiss, and the appellate court erred
in affirming the dismissal. Accordingly, we reverse and remand for
further proceedings consistent with this opinion.

                         III. CONCLUSION
    We hold section 2–109 provides public entities no immunity for
retaliatory discharge based on the exercise of workers’ compensation
rights. We reverse the judgments of the appellate and circuit courts
and remand to the circuit court for further proceedings in accord with
this opinion.

                                             Reversed and remanded.




                                  -9-
