Callahan v. Edgewater Care & Rehabilitation Center, Inc. ( 2007 )

SECOND DIVISION
FILED: July 3, 2007
No. 1-06-3178
MELISSA CALLAHAN, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY
)
v. )
) No. 05 L 006795
EDGEWATER CARE & REHABILITATION CENTER, )
INC., d/b/a SHERIDAN SHORES CARE & )
REHABILITATION CENTER, ) HONORABLE
) BRIGID McGRATH,
Defendant-Appellee. ) JUDGE PRESIDING.
JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiff, Melissa Callahan, appeals from an order of the
circuit court dismissing her common-law retaliatory discharge
action against the defendant Edgewater Care & Rehabilitation
Center, Inc., d/b/a Sheridan Shores Care & Rehabilitation Center
(Edgewater). This appeal raises a very narrow issue: namely,
whether the enactment of the Whistleblower Act (740 ILCS 174/1 et
seq. (West 2004)) repealed by implication the common-law action for
retaliatory discharge then existing in favor of an individual who
is discharged from her employment for reporting illegal or improper
activity to someone other than a government or law enforcement
No. 1-06-3178
official. For the reasons which follow, we hold that it did not
and, therefore, reverse the judgment of the circuit court.
The facts necessary to resolve this appeal are not in dispute.
The claimant filed the instant action alleging that she was fired
from her position as an admissions clerk in a nursing home operated
by Edegewater for reporting activity she reasonably believed to be
in violation of the Nursing Home Care Act (210 ILCS 45/1-101 et
seq. (West 2004)) and section 300.620 of the Illinois
Administrative Code (77 Ill. Adm. Code § 300.620 (2007)).
Specifically, the plaintiff's complaint alleged that she was
discharged for reporting both to her superior, Teneisha Peterson,
and to Corey Nigro, the nursing home's administrator, that a
resident of the home was being kept in the facility against her
will. The plaintiff sought relief pursuant to the common-law tort
of retaliatory discharge.
Although Edgewater had filed an answer to the plaintiff's
complaint, the circuit court, nevertheless, entered an order
granting it leave to file a motion to dismiss. Thereafter,
Edgewater filed a motion pursuant to section 2-615 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-615 (West 2004)) seeking the
dismissal of the claimant's action on the grounds that her common-
law claim had been preempted by the Whistleblower Act and that her
complaint failed to state a cause of action under the statute. The
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No. 1-06-3178
circuit court agreed and dismissed the plaintiff's action. This
appeal followed.
Because this matter was dismissed pursuant to section 2-615 of
the Code, the only question before this court is whether the
plaintiff's complaint states a cause of action upon which relief
could be granted. Burdinie v. Village of Glendale Heights, 139
Ill. 2d 501, 504-05, 565 N.E.2d 654. The issue presented is one of
law; consequently, our review is de novo. T & S Signs, Inc. v.
Village of Wadsworth (1994), 261 Ill. App. 3d 1080, 1084, 634
N.E.2d 306.
In urging reversal of the circuit court's order dismissing her
action, the plaintiff asserts that the common-law action upon which
she based her complaint and an action under the Whistleblower Act
are not in such conflict that both cannot exist. She argues that
there is no presumption that a statutory enactment is intended to
act as an exclusive remedy or to abolish common-law actions, and
she asserts that neither the language of the Whistleblower Act nor
its legislative history evince an intent on the part of the
legislature to preempt her common-law claim. The plaintiff
concludes, therefore, that the circuit court erred in dismissing
her action as the enactment of the Whistleblower Act did not
preempt or repeal a common-law claim for retaliatory discharge in
favor of an employee who is discharged for reporting illegal
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No. 1-06-3178
activity to her employer. We agree.
Our supreme court first recognized the tort of retaliatory
discharge in Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d
353 (1978), a case in which an employer fired an employee after she
filed a workers' compensation claim. Thereafter, the tort evolved
to afford relief to employees discharged for reporting criminal
activity to law-enforcement authorities (Palmateer v. International
Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981)), employees
discharged for reporting criminal activity to their corporate
superiors (Petrik v. Monarch Printing Corp., 111 Ill. App. 3d 502,
444 N.E.2d 588 (1982)), and employees discharged for refusing to
work under conditions which contravened government-mandated safety
codes (Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502, 485
N.E.2d 372 (1985)). In the case of Barr v. Kelso-Burnett Co., 106
Ill. 2d 520, 529, 478 N.E.2d 1354 (1985), our supreme court held
that an employee could state a valid claim for retaliatory
discharge if she alleged that she was discharged from her
employment in retaliation for her activities and that the discharge
violated the clear mandate of public policy.
In 2003, the legislature enacted the Whistleblower Act, which
became effective on January 1, 2004. This statute prohibits an
employer from retaliating against an employee for "disclosing
information to a government or law enforcement agency, where the
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No. 1-06-3178
employee has reasonable cause to believe that the information
discloses a violation of a State or federal law, rule, or
regulation" (740 ILCS 174/15 (West 2004)) and from retaliating
against an employee "for refusing to participate in an activity
that would result in a violation of a State or federal law, rule,
or regulation" (740 ILCS 174/20 (West 2004)). A violation of the
Whistleblower Act is a Class A misdemeanor (740 ILCS 174/25 (West
2004)), and an employee retaliated against in violation of sections
15 or 20 of the statute may bring a civil action against her
employer for all relief necessary to make her whole, including but
not limited to the following:
"(1) reinstatement with the same seniority status as
the employee would have had, but for the violation;
(2) back pay, with interest; and
(3) compensation for any damages sustained as a
result of the violation, including litigation costs,
expert witness fees, and reasonable attorney’s fees" (740
ILCS 174/30 (West 2004)).
Edgewater argues that the Whistleblower Act codified the
whistleblowing category of common-law retaliatory discharge claims
and, therefore, preempts any common-law claim based on such
activities. According to Edgewater, subsequent to the enactment of
the statute, a whistleblowing employee can only state a claim for
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No. 1-06-3178
retaliatory discharge if she made her complaint of illegal activity
to some government or law enforcement agency. In support of its
argument in this regard, Edgewater relies heavily upon the holdings
in Jones v. Dew, 2006 WL 3718053 (N.D.Ill., Dec. 13, 2006) and
Riedlinger v. Hudson Respiratory Care, Inc., 478 F. Supp. 2d 1051
(N.D.Ill. 2007). In both Jones and Riedlinger, the federal
district courts held that the Whistleblower Act prempted the
common-law tort of retaliatory discharge for whistleblowing
activities and, as a consequence, the plaintiffs in those actions
had no right to recovery in the absence of any allegation or
evidence that they were discharged for making complaints to a
government or law enforcement agency. Jones, 2006 WL 3718053 at
*3-4; Riedlinger, 478 F. Supp. 2d at 1054-55. In Jones, the court
rested its preemption holding on this court’s statement that the
Whistleblower Act codified the common law retaliatory discharge
claim based on whistleblowing activities. Jones, 2006 WL 3718053
at *3, citing Sutherland v. Norfolk Southern Ry. Co., 356 Ill. App.
3d 620, 624, n4, 826 N.E.2d 1021 (2005) ("The ‘whistleblower’ cause
of action has since been codified in the Whistleblower Act"); see
also Bajalo v. Northwestern University, 369 Ill. App. 3d 576, 581,
n1, 860 N.E.2d 556 (2006). The Reidlinger court essentially relied
upon the reasoning and holding in Jones. Riedlinger, 478 F. Supp.
2d at 1054-55. Neither court, however, conducted an analysis of
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No. 1-06-3178
the issue of when a statute preempts or repeals a common-law remedy
by implication.
As the Whistleblower Act does not expressly abrogate any
existing common-law remedy, the argument that the statute preempts
the common-law action of retaliatory discharge based on
whistleblowing activities necessarily rests on the proposition that
preemption was accomplished by implication. Repeal or preemption
of an existing common-law remedy by implication is not favored.
Shores v. Senior Manor Nursing Center, Inc., 164 Ill. App. 3d 503,
509, 518 N.E.2d 471 (1988). The rule has long been that a statute
will not be construed as taking away a common-law right existing at
the time of its enactment unless the pre-existing right is so
repugnant to the statute that the survival of the common-law right
would in effect deprive the statute of its efficacy and render its
provisions nugatory. Texas & Pacific Ry. Co. v. Abilene Cotton Oil
Co., 204 U.S. 426, 437, 27 S. Ct. 350, 51 L. Ed. 553 (1907); Reeves
v. Eckles, 77 Ill. App. 2d 408, 410, 222 N.E.2d 530 (1966).
In this case, such repugnance is not apparent. The common law
provides a remedy for employees discharged for reporting illegal
activities to a government or law-enforcement agency (Palmateer, 85
Ill. 2d 124), employees discharged for reporting illegal activities
to their superiors (Petrik, 111 Ill. App. 3d 502), and employees
discharged for refusing to work under conditions which contravened
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No. 1-06-3178
government-mandated safety codes (Wheeler, 108 Ill. 2d 502).
Although it can reasonably be argued that the Whistleblower Act
codified the common-law actions recognized in Palmateer and
Wheeler, nothing in the language of the statute or its legislative
history even suggests that the legislature intended to repeal or
preempt the common-law rights of an individual discharged for
reporting illegal activities to her superiors. The sponsor of the
Whistleblowers Act in the Illinois House of Represenatives spoke in
terms of providing protection for those who report a violation of
the law to the authorities. Ill.H.R. Trans. 2003 Reg. Sess.No.63.
Nothing in his remarks suggest that he intended the legislation to
abrogate the rights of those who report illegal activity to their
employers. Presumptively, the legislature was aware of the common
law at the time that it enacted the Whistleblower Act, and, had
the legislature intended to repeal any common-law rights, it would
have been a simple thing for it to do.
The Whistleblower Act affords far greater relief than the
common law to employees retaliated against in violation of its
provisions. Individuals entitled to relief under the statute can,
in addition to traditional tort damages, recover litigation
expenses, including attorney fees, and are entitled to be
reinstated to their former positions with full seniority. However,
we fail to see how this statutory scheme creates any irreconcilable
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No. 1-06-3178
conflict with the persistence of a common-law remedy in favor of
employees not covered by the statute but who, nevertheless, are
discharged in retaliation for whistleblowing activities in
violation of a clearly mandated public policy. The fact that
individuals discharged in retaliation for reporting illegal
activities to their superiors have no right of action under the
Whistleblower Act does not compel the conclusion that they have no
right of action at all.
For the reasons stated, we find that the enactment of the
Whistleblower Act did not, either explicitly or implicitly,
preempt or repeal the common-law right of action in favor of an
employee discharged in retaliation for reporting illegal activities
to her superior under circumstances where her discharge violates a
clearly mandated public policy. Consequently, we reverse the
judgment dismissing the plaintiff's action on preemption grounds
and remand this cause back to the circuit court for further
proceedings.
Reversed and remanded.
WOLFSON, P.J., and SOUTH, J., concur.
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