Page 20 - John Hundley 2011

The court noted that in Illinois, claims for retaliatory discharge have
been allowed to proceed where plaintiffs alleged discharge for filing a
workers’ compensation claim, for refusing to engage in illegal or unsafe
activities, and when an employee has reported illegal activity.

The Illinois Whistleblower Act (740 ILCS 174) prohibits an
employer from discharging an employee for “disclosing information
to a government or law enforcement agency” (740 ILCS 174/15).
Accordingly, the court said, when it comes to retaliation by an employer for whistleblowing, Illinois
looks at the intent of the plaintiff and the motive of the employer. “Undoubtedly, the intent of the
employee to blow the whistle is vital to a claim of retaliatory discharge,” it said. Moreover, the court
said, “when courts evaluate the intent of employees, the test has been whether the plaintiffs acted on
a good-faith belief that an employer was violating the law” (see also Mackie v. Vaughan Chapter-
Paralyzed Veterans of Am., 354 Ill.App.3d 731 (2004); Stebbings v. Univ. of Chicago, 312 Ill.App.3d
360 (2000).

Citing Zuccolo v. Hannah Marine Corp., 387 Ill.App.3d 561 (2008), the court said that “[a]t the
crux of causation in retaliatory discharge actions is the question of whether the employer had
a retaliatory motive.” In Michael, the Fifth District held that it doesn’t matter whether the plaintiffs
directly or indirectly reported what they believed to be illegal activity. Plaintiffs’ intent was to blow the
whistle, and the manner in which they did so had no effect on whether defendant’s motive was
retaliatory.

With regard to the requirement of a clear mandate, the court recognized that “[a]s a general rule,
the ascertainment of public policy and the determination of whether the policy is undermined by an
employer’s discharge are questions of law for the courts” (citing Turner v. Memorial Med. Ctr., 233
Ill.2d 494 (2009)). So whether “a discharge violated a clear mandate of public policy is generally a
question of law.” If there is not a clearly mandated public policy, then the employer may discharge
the worker at will, the court concurred.

The Illinois Seed Law (505 ILCS 110), which was the public policy plaintiffs alleged was violated
by the employer, is clearly a mandated public policy, the Appellate Court reasoned. If plaintiffs were
discharged in retaliation for forwarding information of the employer’s violation of the Seed Law, that
violation would support a claim for retaliatory discharge, it ruled.

As the Circuit Court noted, plaintiffs alleged their discharge stemmed from
reporting defendant’s violation of the Illinois Seed Law. If they were indeed
terminated for said reporting, it would support a claim for retaliatory discharge.
The Fifth District noted that the “determination of the reason for an employee’s
discharge often relies on circumstantial evidence” (citing Hugo v Tomaszewski,
155 Ill.App.3d 906 (1987)). Thus, whether there is a causal connection to
an employee’s discharge or whether an employee was discharged for a
valid, nonpretextual reason “is usually not ripe for a summary judgment.”

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