Ill. Pattern Jury Instr. (Civil) 250.00

Introduction

ILLINOIS SUPREME COURT CASES

The tort of retaliatory discharge was first recognized by the Illinois Supreme Court in

Kelsey v. Motorola, Inc., 74 Ill.2d 172, 384 N.E.2d 353, 23 Ill.Dec. 559 (1978), where the

plaintiff was terminated in retaliation for filing a workers' compensation claim. The court

reasoned that workers' compensation law provided an efficient and expeditious remedy for an

injured employee, and terminating an employee for filing a claim seriously undermined that

scheme.

Later, in Palmateer v. International Harvester Company, 85 Ill.2d 124, 52 Ill.Dec. 13,

421 N.E.2d 876 (1981), the plaintiff claimed that he was discharged after sixteen years of

employment for supplying information to law enforcement authorities that a company employee

might be involved in criminal activity. The court again recognized an action for retaliatory

discharge when an employee is fired in violation of an established public policy that favors

citizen crime-fighters, and the dismissal of the plaintiff's complaint was reversed.

The Illinois Supreme Court again recognized a retaliatory discharge tort in Wheeler v.

Caterpillar Tractor Co., 108 Ill.2d 502, 485 N.E.2d 372, 92 Ill.Dec. 561 (1985). In Whe eler, the

plaintiff alleged he was discharged in violation of public policy for refusing to handle radioactive

material as a part of his job duties allegedly in violation of the Nuclear Regulatory Rules

applicable to the defendant employer.

In 1988, the court held that the right to recover for retaliatory discharge does not depend

upon an analysis of the terms of any collective -bargaining agreement and is not preempted by

such an agreement. This right is derived from Illinois public policy and is equally available to

employees at will; it cannot be negotiated or bargained away. Ryherd v. General Cable Company,

124 Ill.2d 418, 530 N.E.2d 431, 125 Ill.Dec. 273 (1988). Additionally, the court held that

employees could bring a tort action for retaliatory discharge even though they had not pursued

contractual remedies pursuant to a collective- bargaining agreement. Midgett v. Sackett-Chicago,

Inc., 105 Ill.2d 143, 473 N.E.2d 1280, 85 Ill.Dec. 475 (1984). Further, in Gonzalez v. Prestress

Engineering Corporation, 115 Ill.2d 1, 503 N.E.2d 308, 104 Ill.Dec. 751 (1986), the court held

that a union member does not have to exhaust the grievance -arbitration procedure established in

the collective-bargaining agreement to file a common law claim for retaliatory discharge.

In 1986, however, the Illinois Supreme Court held in Koehler v. Illinois Central Gulf

Railroad Co., 109 Ill.2d 473, 488 N.E.2d 542, 94 Ill.Dec. 543, that a suit for retaliatory discharge

against a railroad was preempted by the Federal Railway Labor Act, 45 U.S.C.A. §§151-163.

Therefore, the Illinois state courts had no jurisdiction to hear and resolve such wrongful

discharge disputes. See also Bartley v. University Asphalt Co., 111 Ill.2d 318, 489 N.E.2d 1367,

95 Ill.Dec. 503 (1986), wherein the court hel d that a discharged employee's cause of action

against a union for civil conspiracy based upon its alleged conspiracy with his employer to

inadequately represent the employee on his claim of retaliatory discharge, was preempted by

federal labor law. When t he plaintiff's claim for wrongful discharge is based upon age, the court

held that such a claim is preempted by the Illinois Human Rights Act. Mein v. Masonite

Corporation, 109 Ill.2d 1, 485 N.E.2d 312, 92 Ill.Dec. 501 (1985).

In Hinthorn v. Roland's of Bloomington, Inc., 119 Ill.2d 526, 519 N.E.2d 909, 116

Ill.Dec. 694 (1988), the court upheld the worker's retaliatory discharge claim when she alleged

that she had been discharged for asserting her rights for medical attention when the worker

alleged she w as forced to sign a “voluntary resignation” form or be fired which the court held

sufficient to support a finding that she was “discharged.” There is no cause of action for

retaliatory discharge, however, predicated on an employer's alleged demotion of or

discrimination against an employee in retaliation for the assertion of rights under the Workers'

Compensation Act. There must be an actual discharge. Zimmerman v. Buchheit of Sparta, Inc.,

164 Ill.2d 29, 645 N.E.2d 877, 206 Ill.Dec. 625 (1994).

In worker s' compensation discharge cases, the plaintiff may only bring a retaliatory

discharge action against his employer, as compared to the employee or agent of his employer

who caused the discharge on behalf of the employer. Buckner v. Atlantic Plant Maintenanc e,

Inc., 182 Ill.2d 12, 694 N.E.2d 565, 230 Ill.Dec. 596 (1998).

In retaliatory discharge cases, an employer is not required to come forward with an

explanation for an employee's discharge, and it remains the plaintiff's burden to prove the

elements of t he cause of action; however, an employer may choose to offer an explanation if it

desires. Clemons v. Mechanical Devices Company , 184 Ill.2d 328, 704 N.E.2d 403, 235 Ill.Dec.

54 (1998). Such cases should use traditional tort standards of proof, rather than the three- tier

allocation of proof standard applied by federal courts in Title VII employment discrimination

cases. Id.

Our supreme court has not recognized causes of action for retaliatory discharge in

Fellhauer v. City of Geneva , 142 Ill.2d 495, 568 N .E.2d 870, 154 Ill.Dec. 649 (1991) (no public

policy violation existed where a city employee sued the mayor because the state municipal code

allowed the mayor to remove any officer that he appointed; therefore, allowing the plaintiff's

claim would frustrate the mayor's discretionary authority over appointments), Gould v.

Campbell's Ambulance Service, Inc., 111 Ill.2d 54, 488 N.E.2d 993, 94 Ill.Dec. 746 (1986)

(relevant statutory provisions and ordinance failed to show the existence of a clearly mandated

public policy), and Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 478 N.E.2d 1354, 88 Ill.Dec. 628

(1985) (no public policy violation existed because the United States Constitution does not

provide protection against private individuals or corporations who abridge free expression of

others).

ILLINOIS APPELLATE COURT CASES

In Stebbings v. University of Chicago, 312 Ill.App.3d 360, 726 N.E.2d 1136, 244 Ill.Dec.

825 (1st Dist. 2000), the Illinois Appellate Court upheld the plaintiff's claim for retaliatory

discharge when the plaintiff alleged that he was fired for insisting that the radon exposure to

participants in a study at the university be reported to the institution that funded the project. In

holding that the tort of retaliatory discharge protects whistle -blowers who report illegal or

improper conduct, the court reasoned that the fact that the reported conduct did not constitute a

criminal act did not diminish the plaintiff's claim. The tort applies not only where criminal

statutes are violated, but also where federal regulations are breached. Id.

Similarly, in Johnson v. World Color Press, Inc., 147 Ill.App.3d 746, 498 N.E.2d 575,

101 Ill.Dec. 251 (5th Dist. 1986), a cause of action for retaliatory discharge was recognized when

the plaintiff objected to certain company accounting practices which he believed violated federal

securities laws. Likewise, in Petrik v. Monarch Printing Corporation, 111 Ill.App.3d 502, 444

N.E.2d 588, 67 Ill.Dec. 352 (1st Dist. 1982), the Illinois Appellate Court found that the pl aintiff

stated facts sufficient to survive a motion to dismiss when he alleged he was discharged for

researching a financial discrepancy that he believed may have been due to criminal conduct. In

Mackie v. Vaughan Chapter -Paralyzed Veterans of America, Inc ., 354 Ill.App.3d 731, 820

N.E.2d 1042, 289 Ill.Dec. 967 (1st Dist. 2004), dismissal of a retaliatory discharge claim was

reversed on appeal where the employee alleged that he was terminated after reporting what he

believed was the theft of chapter propert y when a member of the chapter's board of directors

downloaded the organization's mailing lists for use by a private business. The court held that

those allegations stated a cause of action for retaliatory discharge under the citizen crime- fighter

theory.

In contrast to these cases, the appellate court affirmed the dismissal of an employee's

complaint when he alleged that he was discharged because of reporting suspected criminal

activity to a supervisor. Zaniecki v. P.A. Bergner and Company of Illinois , 143 Ill.App.3d 668,

493 N.E.2d 419, 97 Ill.Dec. 756 (3rd Dist. 1986) (declining to follow Petrik, infra). No violation

of public policy or illegal or improper criminal conduct was found where a plaintiff reported to

his employer that a coworker committed su icide due to job- related pressures. Lambert v. City of

Lake Forest , 186 Ill.App.3d 937, 542 N.E.2d 1216, 134 Ill.Dec. 709 (2nd Dist. 1989). The

appellate court rejected the plaintiff's retaliatory discharge claim because even though the

complaint stated a cause of action, the facts addressed at trial did not support the allegations. See

also Doherty v. Kahn, 289 IllApp.3d 544, 682 N.E.2d 163, 224 Ill.Dec. 602 (1st Dist. 1997),

wherein the plaintiff failed to state a cause of action for retaliatory discharge when plaintiff

alleged conspiracy because public policies surrounding covenants not to compete and unfair

competition do not affect the overall welfare of citizens. Additionally, in Thompson v. Abbott

Laboratories, 193 Ill.App.3d 188, 549 N.E.2d 1295, 140 Ill.Dec. 423 (2nd Dist. 1990), a jury

verdict for the employer was upheld on appeal despite the employee's assertion of error in the

denial of a tendered instruction. The trial court denied a “mixed motive” jury instruction tendered

by the plaintiff stating that there could be more than one factor or cause for discharge and if one

of the factors related to the filing of a workers' compensation claim, then the worker was entitled

to recover. The appellate court held that denial of this instruction was proper and did not deny the

plaintiff a fair trial. Lastly, in Cross v. City of Chicago, 352 Ill.App.3d 1, 815 N.E.2d 956, 287

Ill.Dec. 312 (1st Dist. 2004), the employee brought a retaliatory discharge action against the city

alleging that his discharge was in retaliation for exercising his rights pursuant to the Illinois

Workers' Compensation Act. The appellate court held, however, that the city was immune from

liability under the Local Governmental and Governmental Employees Tort Immunity Act for the

City Commissioner's decision to terminate a probationary employee.

SEVENTH CIRCUIT CASES APPLYING ILLINOIS LAW

In Belline v. K-Mart Corporation, 940 F.2d 184 (1991), the Seventh Circuit held that an

employee, who alleged that he was fired in retaliation for rep orting suspicious behavior on the

part of his supervisor had a cause of action for retaliatory discharge, even though the employee

did not report the matter to the police, as Illinois public policy protects vigilant employees who

alert their employers to a pparent criminal activity in the workplace. However, in Long v.

Commercial Carriers, Inc., 57 F.3d 592 (1995), a truck driver did not state a viable claim for

retaliatory discharge when he was discharged as a result of his refusal to sign a lease which

governed his employment on the ground that the lease violated Interstate Commerce Commission

regulations. The alleged infractions were violations of agency regulations, not statutory law, and

the regulations allegedly violated did not involve issues of health or safety of the general public

or even of drivers, but instead involved allocation of expenses, responsibility for permits and

insurance payments and compensation for drivers. See also Bourbon v. K-Mart Corporation, 223

F.3d 469 (2000), wherein summary j udgment was affirmed on appeal for the employer when it

was held that an employee's reporting of his supervisor's alleged acts of charging customers for

unnecessary automobile repairs was not causally linked to the employee's termination. Here, the

employee simply failed to establish a primary retaliatory discharge case under Illinois law

because he could not offer any direct evidence that the recording was a cause of the termination

and the close relation in time between the recording and his termination did not demonstrate any

pretext.

CONCLUSION

In summary, retaliatory discharge claims have emerged under two theories: (1) a “clear

mandate” action alleging that the complained of conduct contravenes a clearly mandated public

policy, but not necessarily a law; and (2) a “citizen crime-fighter” theory. Stebbings v. University

of Chicago, 312 Ill.App.3d 360, 726 N.E.2d 1136, 244 Ill.Dec. 825 (1st Dist. 2000). Citizen

crime-fighter cases usually involve an employee terminated for “whistle -blowing” or reporting

that a co -worker allegedly committed a crime; however, the crime does not have to be

work-related. See Belline, 940 F.2d at 187; Vorpagel v. Maxell Corp. of America, 333 Ill.App.3d

51, 266 Ill.Dec. 818, 775 N.E.2d 658 (2nd Dist. 2002).

Stebbings described two layers of analysis that apply to a citizen crime-fighter case. First,

statutes, constitutional provisions, or case law must mandate a public policy of reporting crime;

the Stebbings court notes, however, that since Palmateer, “there is little question that such a

policy has been clearly mandated and so this layer of law will rarely be at issue” in a citizen

crime-fighter suit. Second, a law must prohibit the conduct that the employee reported or refused

to engage in, and the employee must have a good-faith belief that the law prohibits the conduct in

question. The plaintiff need only have a good- faith belief that the defendant was violating the

law; the plaintiff need not conclusively show that the law was broken or the regulations in

question were violated. Stebbings, 312 Ill.App.3d 360, 726 N.E.2d 1136, 244 Ill.Dec. 825 (1 st

Dist. 2000).