Collins v. Bartlett Park District ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Collins v. Bartlett Park District, 2013 IL App (2d) 130006
Appellate Court JOHN COLLINS, Plaintiff-Appellant, v. BARTLETT PARK DISTRICT,
Caption Defendant-Appellee.
District & No. Second District
Docket No. 2-13-0006
Filed September 20, 2013
Held On appeal from the dismissal of plaintiff’s claims for a violation of the
(Note: This syllabus Whistleblower Act and retaliatory discharge arising from his challenge
constitutes no part of of his supervisor’s decision to continue operating a ski lift at the park
the opinion of the court district where he worked, the dismissal of his claim under the Act was
but has been prepared upheld in the absence of an allegation that plaintiff refused to participate
by the Reporter of in an illegal activity, but the dismissal of the retaliatory discharge claim
Decisions for the was reversed, since plaintiff alleged that the Safety Act applicable to the
convenience of the operation of ski lifts and regulations and inspections required by the
reader.)
Department of Labor were a clear mandate of a public policy of ensuring
skier safety, and the question of whether plaintiff was discharged for
insubordination or in retaliation for seeking enforcement of the safety
regulations was a matter for the trier of fact.
Decision Under Appeal from the Circuit Court of Du Page County, No. 12-L-59; the Hon.
Review Hollis L. Webster, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on Stephen M. Cooper, Peter M. Storm, and Philip J. Piscopo, all of Cooper,
Appeal Storm & Piscopo, of Geneva, for appellant.
Gregory R. James, David A. Moore, and Sara P. Yager, all of Laner
Muchin, Ltd., of Chicago, and Edward F. Dutton, of Park District Risk
Management Agency, of Lisle, for appellee.
Panel PRESIDING JUSTICE BURKE delivered the judgment of the court, with
opinion.
Justices Hutchinson and Jorgensen concurred in the judgment and
opinion.
OPINION
¶1 Defendant, Bartlett Park District, terminated the employment of plaintiff, John Collins,
after plaintiff challenged his supervisor’s decision to continue operating an allegedly
defective ski lift at full capacity. Plaintiff filed a two-count amended complaint, alleging (1)
retaliation in violation of section 20 of the Whistleblower Act (see 740 ILCS 174/20 (West
2012)) and (2) the common-law tort of retaliatory discharge.
¶2 The trial court dismissed both claims under section 2-615 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-615 (West 2012)), and plaintiff appeals. We affirm the dismissal of
the whistleblower claim, reverse the dismissal of the retaliatory discharge claim, and remand
the cause for further proceedings.
¶3 FACTS
¶4 In his amended complaint, plaintiff alleged the following facts common to both claims.
Defendant owns and operates the Villa Olivia Country Club and Ski Facility (Villa Olivia)
in Bartlett. The ski facility includes chair lifts designed to transport skiers to the top of a ski
hill. Each chair in the lift at issue holds up to four passengers.
¶5 From 1983 until late in 2010, Villa Olivia’s prior owner employed plaintiff, whose job
title was assistant superintendent. Plaintiff’s duties included overseeing the day-to-day
operations of the ski hill, maintaining the buildings, maintaining and repairing equipment for
the ski hill and golf course, and maintaining and repairing the chair lifts to ensure their safe
operation. Defendant purchased Villa Olivia in November 2010. Plaintiff reapplied for his
position and was hired by defendant in December 2010.
¶6 The Carnival and Amusement Rides Safety Act (Safety Act) regulates the operation and
maintenance of ski lifts in Illinois, including the chair lifts and other lifts at Villa Olivia. See
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430 ILCS 85/2-2(4)(b) (West 2012) (“amusement ride” governed by the Safety Act defined
to include “any ski lift, rope tow, or other device used to transport snow skiers”). The Safety
Act charges the Department of Labor and the Carnival-Amusement Safety Board to
“promulgate and formulate definitions, rules and regulations for the safe installation, repair,
maintenance, use, operation, training standards for operators, and inspection of all
amusement rides and amusement attractions as the Director finds necessary for the protection
of the general public using amusement rides and amusement attractions.” 430 ILCS 85/2-6
(West 2012). Accordingly, the Director of the Department of Labor adopted a regulation that
implements the standards of “ANSI B-77.1” from the American National Standards Institute
(ANSI), which is entitled “2006 Passenger Ropeways–Aerial Tramways, Aerial Lifts,
Surface Lifts, Tows and Conveyors–Safety Requirements (2006)” (hereinafter ANSI Code).
56 Ill. Adm. Code 6000.15(a)(1)(B) (2009).
¶7 On December 26, 2010, plaintiff discovered that the chair lift had a maintenance
problem. Two worn sheave wheel liners on tower 3 caused the chair cable, when ascending
the lift, to ride outside the sheave wheel assemblies. Plaintiff observed that the defect caused
the chair lift’s rope grips to be in contact with the sheave flanges, outside the line sheave
groove.
¶8 Plaintiff alleged that a chair lift operating this way would be a violation of sections
4.1.3.3.2 and 4.1.3.3.3 of the ANSI Code. Furthermore, the haul rope grip no longer passed
smoothly over and under the line sheaves as required by section 4.1.4.3.1 of the ANSI Code.
On December 26, 2010, plaintiff drafted, signed, and delivered to defendant a handwritten
description of the chair lift’s condition on that date. Plaintiff attached a copy of that
document to the amended complaint.
¶9 To reduce the load on the system, plaintiff adopted a temporary safety measure of loading
only two passengers on every other chair, rather than four passengers on every chair. This
measure prevented the chair cable from riding outside the sheave wheel assembly and
temporarily brought the chair lift into compliance with the ANSI Code.
¶ 10 Plaintiff reported the problem and his temporary solution to his supervisor, John Carlson,
the parks department superintendent. Carlson decided to repair the system by replacing the
two sheave wheel assemblies. Plaintiff alleged that such a replacement is not “the ordinary
method of repairing the system” but would be effective if the correct parts were used.
Plaintiff ordered the correct replacement parts, but the wrong parts arrived. By January 14,
2011, the system could not be repaired as Carlson directed.
¶ 11 At defendant’s request, plaintiff tested the chair lift and learned that the cable, when the
chairs were fully loaded, was still riding outside the sheave wheel assemblies. The condition
had not changed since plaintiff’s discovery of the problem the previous month.
¶ 12 Plaintiff persisted in his opinion that safe operation of the chair lift required restricting
the number of passengers and chairs that were loaded. Plaintiff instructed the chair lift
operator to continue to load only every other chair with only two passengers. Plaintiff
notified defendant of his findings and his directions to the operator.
¶ 13 On January 15, 2011, plaintiff arrived at work and discovered that the chair lift was
operating at full capacity. Plaintiff immediately reiterated his instruction to the operator to
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restrict the load.
¶ 14 The operator responded that Rita Fletcher, Villa Olivia’s executive director, had
instructed him to load the chairs to full capacity. Plaintiff told the operator that running the
chair lift that way was “wrong” and that he should load every other chair only.
¶ 15 Fletcher summoned plaintiff and informed him that she and Carlson had decided that the
chair lift would be operated at full capacity, even though it had not been repaired yet.
Fletcher reprimanded plaintiff for disobeying her orders.
¶ 16 Plaintiff told Fletcher that her proposed method of operating the chair lift was unsafe and
violated the ANSI Code and the manufacturer’s instructions. Plaintiff also told Fletcher that
he would report the violation to the Department of Labor.
¶ 17 Fletcher persisted in her order that the chair lift be operated at full capacity, and plaintiff
responded that he could not obey that order. Thereafter, defendant excluded plaintiff from
any decisions regarding the safety of the chair lift.
¶ 18 On January 17, 2011, a lift engineer inspected the system pursuant to the Safety Act.
Plaintiff was not notified of the inspection. The engineer reported no problems with tower
3, which plaintiff had found to be defective. However, the engineer reported two findings
regarding tower 2. First, a lower ring that holds the bullwheel liner in place had a section
where several welds were cracked. The ring was loose, which caused the wheel to make a
“cyclical noise” on every rotation. The engineer recommended repairing the ring within four
days and monitoring it closely. Second, a particular sheave unit needed alignment and likely
needed new sheave liners, with one of the sheaves needing immediate attention. Alignment
would be challenging, because the line gauge was spread. Plaintiff alleged that he was
capable of performing the repairs recommended by the engineer, but defendant did not
inform him of the recommendations.
¶ 19 On January 24, 2011, Carlson, acting on behalf of defendant, informed plaintiff that his
employment was terminated. Plaintiff alleged, upon information and belief, that after his
termination defendant adopted his safety measure of loading only two people on only every
other chair of the lift.
¶ 20 Defendant filed a combined motion to dismiss plaintiff’s amended complaint, pursuant
to sections 2-615, 2-619, and 2-619.1 of the Code (735 ILCS 5/2-615, 2-619, 2-619.1 (West
2012)). On September 20, 2012, the trial court dismissed the whistleblower claim under
section 2-615 for failing to state a claim. The court initially declined to dismiss the retaliatory
discharge claim, but on December 5, 2012, the court reconsidered its decision and dismissed
that claim under section 2-615 as well. Accordingly, plaintiff’s entire action was dismissed
with prejudice. Plaintiff’s timely appeal followed.
¶ 21 ANALYSIS
¶ 22 Initially, we address plaintiff’s request to strike portions of defendant’s brief. Plaintiff
asserts that defendant’s nature-of-the-case and statement-of-facts sections are inaccurate and
argumentative. Illinois Supreme Court Rule 341(h)(2) (eff. July 1, 2008) requires an
introductory paragraph stating (1) the nature of the action and of the judgment appealed from
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and whether the judgment is based upon the verdict of a jury, and (2) whether any question
is raised on the pleadings and, if so, the nature of the question. In defendant’s brief, the
section labeled “nature of the case” consists of a 2½-page recitation of the facts, including
an explanation of the parties’ arguments to the trial court. Such detail is excessive, and we
consider it a violation of Rule 341(h)(2).
¶ 23 Illinois Supreme Court Rule 341(h)(6) (eff. July 1, 2008) requires a statement of facts,
which shall contain the facts necessary to an understanding of the case, stated accurately and
fairly without argument or comment, and with appropriate reference to the pages of the
record on appeal. Although defendant’s statement of facts contains argument, it is not so
argumentative that it must be stricken. We decline to strike the nature-of-the-case and
statement-of-facts sections of defendant’s brief, but we disregard any inappropriate or
unsupported material and any argument contained in those sections.
¶ 24 A. Whistleblower Act
¶ 25 In his whistleblower claim, plaintiff additionally alleged that (1) he had a good-faith
belief that the chair lift was defective, creating an unsafe condition and violating specific
sections of the ANSI Code; (2) he was justified in instructing the chair lift operator to operate
the lift at less than full capacity to remedy the condition, despite the contrary orders of
Fletcher and Carlson; and (3) defendant terminated plaintiff’s employment in retaliation for
his directing the operator to run the lift at less than full capacity. Plaintiff contends that these
allegations stated a claim of retaliation in violation of section 20 of the Whistleblower Act,
and therefore his whistleblower claim should not have been dismissed under section 2-615
of the Code. We disagree.
¶ 26 A motion to dismiss under section 2-615 of the Code (735 ILCS 5/2-615 (West 2012))
challenges the legal sufficiency of a complaint, based on defects apparent on its face.
Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). To review the legal sufficiency
of a complaint, a court accepts as true all well-pleaded facts and all reasonable inferences that
may be drawn from those facts and construes the allegations in the light most favorable to
the plaintiff. Marshall, 222 Ill. 2d at 429. While a plaintiff must allege facts sufficient to
bring a claim within a legally recognized cause of action, a cause of action should not be
dismissed under section 2-615 unless it is clearly apparent that no set of facts can be proved
that would entitle the plaintiff to recovery. Marshall, 222 Ill. 2d at 429-30.
¶ 27 Section 20 of the Whistleblower Act provides, in relevant part, that “[a]n employer may
not retaliate 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 2012).
The Appellate Court, First District, in a case directly on point, recently held that the language
of section 20 is unambiguous and that, to state a claim, a “plaintiff must actually refuse to
participate” in an activity that would violate a law or regulation. Sardiga v. Northern Trust
Co., 409 Ill. App. 3d 56, 62 (2011). The term “refusing” under section 20 “means refusing;
it does not mean ‘complaining’ or ‘questioning.’ ” Sardiga, 409 Ill. App. 3d at 62.
¶ 28 Although plaintiff has alleged that defendant knowingly decided to continue operating
a defective chair lift in violation of a law or regulation, plaintiff has failed to allege that he
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actually refused to participate in that activity. Instead, plaintiff has alleged that, when he saw
the chair lift operator loading the chairs to full capacity, he directed the operator to adopt his
safety measure of running at one-quarter capacity. The operator refused to follow plaintiff’s
directive, per the instructions of Fletcher and Carlson. Fletcher reprimanded plaintiff, and he
took no further action to pursue his objection. Plaintiff did not allege that he was operating
the chair lift or that defendant ordered him to do something that he actually refused to do.
Plaintiff complained to and questioned the decision of Fletcher and Carlson to continue
operating the chair lift at full capacity, but such protestations are not a “refusal to participate”
under section 20 of the Whistleblower Act. See Sardiga, 409 Ill. App. 3d at 62.
¶ 29 Plaintiff has failed to allege that he actually refused to participate in an illegal activity,
and therefore he has not stated a claim for retaliation under section 20. The trial court
correctly dismissed the whistleblower claim pursuant to section 2-615 of the Code.
¶ 30 B. Retaliatory Discharge
¶ 31 Illinois follows the general rule that an at-will employee may be discharged “ ‘for any
reason or no reason.’ ” Turner v. Memorial Medical Center, 233 Ill. 2d 494, 500 (2009)
(quoting Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 32 (1994)). Our supreme
court, however, recognizes an exception to the general rule, in an action for retaliatory
discharge. Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 159 (1992). “To state a valid
retaliatory discharge cause of action, an employee must allege that (1) the employer
discharged the employee, (2) in retaliation for the employee’s activities, and (3) that the
discharge violates a clear mandate of public policy.” Turner, 233 Ill. 2d at 500. The
exception is “a limited and narrow cause of action.” Turner, 233 Ill. 2d at 500. If the
employer has a valid, nonpretextual basis for discharging the employee, the element of
causation is not met. Hartlein, 151 Ill. 2d at 160. The employee must identify a clear and
specific mandate of public policy as opposed to a broad, general, or vague statement that
does not provide specific guidance or is prone to multiple interpretations. Turner, 233 Ill. 2d
at 503. “Unless the employee identifies a clear mandate of public policy that is violated by
the employee’s discharge, the complaint will not state a cause of action for retaliatory
discharge.” Turner, 233 Ill. 2d at 503.
¶ 32 Generally, the issue of retaliation is a question for the trier of fact to resolve. Turner, 233
Ill. 2d at 501 n.1. However, the issue of whether a public policy exists, and the related issue
of whether the employee’s discharge undermines the stated public policy, are questions of
law for the court to decide. Turner, 233 Ill. 2d at 501.
¶ 33 In his retaliatory discharge claim, plaintiff alleged that a clear mandate of public policy
requires the operators of ski lifts to maintain and operate them safely and to cooperate with
the Department of Labor in reporting safety violations and maintenance and operational
issues. Plaintiff alleged that the public policy is rooted in the Safety Act, the regulations
promulgated by the Department of Labor, the inspections mandated by the Department of
Labor, and the common law that imposes on operators liability for unsafe ski lifts that cause
injuries.
¶ 34 Plaintiff also alleged that he was discharged in retaliation for reporting the hazard to
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defendant, refusing to allow the ski lift to be operated in violation of safety standards, and
informing defendant that continuing to operate the ski lift at full capacity was unsafe and a
violation of the ANSI Code. Plaintiff concluded that his discharge violated the clear mandate
of public policy that requires ski lifts to be maintained and operated safely.
¶ 35 1. Section 2-615: Failure to State a Claim
¶ 36 Defendant argues that the retaliatory discharge claim failed to state a cause of action, and
therefore the trial court correctly dismissed it under section 2-615 of the Code. Specifically,
defendant argues that (1) no clear mandate of public policy was violated by plaintiff’s
discharge and (2) plaintiff’s discharge was not retaliatory, because he had been engaging in
insubordination. Plaintiff argues that his allegations stated a claim of retaliatory discharge,
and therefore his claim should not have been dismissed. We agree.
¶ 37 a. Public Policy
¶ 38 Plaintiff alleged that a clear mandate of public policy requires the operators of ski lifts
to maintain and operate them safely and to cooperate with the Department of Labor in
reporting safety violations and maintenance and operational issues. Defendant characterizes
plaintiff’s allegation as a broad, general, and vague statement about “safety procedures” or
“public safety” that does not amount to a clear mandate of public policy.
¶ 39 Generally, the ascertainment of public policy and the determination of whether the policy
is undermined by an employee’s discharge are questions of law for the courts. Turner, 233
Ill. 2d at 501. Thus, our review is de novo. Turner, 233 Ill. 2d at 502.
¶ 40 The public-policy element of retaliatory discharge reflects the tort’s role in striking “a
proper balance *** among the employer’s interest in operating a business efficiently and
profitably, the employee’s interest in earning a livelihood, and society’s interest in seeing its
public policies carried out.” (Internal quotation marks omitted.) Turner, 233 Ill. 2d at 502.
Although the term “clearly mandated public policy” eludes precise definition, “it can be said
that public policy concerns what is right and just and what affects the citizens of the State
collectively.” (Internal quotation marks omitted.) Turner, 233 Ill. 2d at 500. A clear mandate
of public policy “must strike at the heart of a citizen’s social rights, duties, and
responsibilities.” (Internal quotation marks omitted.) Turner, 233 Ill. 2d at 501. Also, a clear
mandate of public policy must be sufficiently specific to put employers on notice that
employment decisions relating to the policy could expose them to liability. Turner, 233 Ill.
2d at 503 (“An employer should not be exposed to liability where a public policy standard
is too general to provide any specific guidance or is so vague that it is subject to different
interpretations.” (Internal quotation marks omitted.)). Otherwise, evaluating the public-policy
exception with generalized concepts of fairness and justice will result in an elimination of
the at-will doctrine itself. Turner, 233 Ill. 2d at 502-03. Examples of public policies too
general or vague to be enforced in an action for retaliatory discharge include the right to
marry a coworker, product safety, promoting quality health care, and the Hippocratic Oath.
Turner, 233 Ill. 2d at 503. The Turner court explained the importance of balancing the
interests of employees, employers, and the public:
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“Adherence to a narrow definition of public policy, as an element of a retaliatory
discharge action, maintains the balance among the recognized interests. Employees will
be secure in knowing that their jobs are safe if they exercise their rights according to a
clear mandate of public policy. Employers will know that they may discharge their at-will
employees for any or no reason unless they act contrary to public policy. Finally, the
public interest in the furtherance of its public policies, the stability of employment, and
the elimination of frivolous lawsuits is maintained. [Citation.]” Turner, 233 Ill. 2d at 507.
¶ 41 Clear mandates of public policy can be found in the constitution, statutes, judicial
decisions, and safety regulations. Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502 (1985).
In this case, the Safety Act defines “amusement ride” to mean “any ski lift, rope tow, or other
device used to transport snow skiers.” 430 ILCS 85/2-2(4)(b) (West 2012). Defendant does
not dispute that the Safety Act governs the safe operation and maintenance of the ski lifts at
Villa Olivia. Pursuant to the Safety Act, the Department of Labor and the Carnival-
Amusement Safety Board promulgated and formulated definitions, rules, and regulations for
the safe installation, repair, maintenance, use, operation, operator training standards, and
inspection of all amusement rides as necessary for the protection of the general public using
them. See 430 ILCS 85/2-6 (West 2012). Specifically, the Director of Labor adopted a
regulation that implements the standards of ANSI B-77.1, entitled “2006 Passenger
Ropeways–Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors–Safety
Requirements (2006).” 56 Ill. Adm. Code 6000.15(a)(1)(B) (2009). Plaintiff alleged that
defendant’s insistence on operating the ski lift at full capacity violated many of those
standards, which he cited in his amended complaint.
¶ 42 In Mitee Racers, Inc. v. Carnival-Amusement Safety Board, 152 Ill. App. 3d 812, 817
(1987), we thoroughly examined the legislative history of the Safety Act and determined that
the legislature intended to regulate all mechanized amusement rides presenting a potential
danger to the public. We noted that the Safety Act was passed in response to numerous
injuries that resulted from amusement-ride accidents, including a serious accident at Six
Flags Over Great America near Gurnee. Mitee Racers, 152 Ill. App. 3d at 817. We held that
“the legislature intended that the [Safety Act] be broadly applied to all mechanized
amusement rides in the interests of preventing danger to children, or any other users of the
rides.” Mitee Racers, 152 Ill. App. 3d at 819.
¶ 43 Consistent with Mitee Racers, we agree with plaintiff that the Safety Act, and the
regulations promulgated thereunder, establish a clear mandate of public policy that operators
maintain and operate ski lifts safely and to cooperate with the Department of Labor in
reporting safety violations and maintenance and operational issues. This narrowly defined
public policy protects the interest of preventing danger to skiers and other passengers of the
chair lifts. We further conclude that plaintiff’s termination, as alleged in his retaliatory
discharge claim, undermined that clear mandate of public policy by stifling the willingness
of other employees to complain of similar problems.
¶ 44 While defendant has an interest in operating its ski facility efficiently and profitably, one
can hardly imagine how that interest could outweigh society’s interest in seeing that ski lifts
are operated in accordance with precise safety regulations. The public policy of protecting
ski-lift passengers strikes at the heart of a citizen’s social rights, duties, and responsibilities.
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See Turner, 233 Ill. 2d at 501. The ANSI Code violations that plaintiff alleged show that the
public policy is sufficiently specific to put defendant on notice that its employment decisions
relating to that policy could expose it to liability. See Turner, 233 Ill. 2d at 503.
¶ 45 Our decision is supported by Carty v. Suter Co., 371 Ill. App. 3d 784 (2007), in which
the discharged employee alleged that he observed his employer, a food manufacturing
company, using expired buttermilk and mislabeling its food products by listing certain
ingredients that were not in the products. Carty, 371 Ill. App. 3d at 785. The employee
alleged in his retaliatory discharge claim that the practices were “unlawful according to
various federal laws and regulations.” Carty, 371 Ill. App. 3d at 785. The trial court granted
the employer summary judgment.
¶ 46 On appeal, we reversed the summary judgment, observing that “ ‘[t]here is no public
policy more important or more fundamental than the one favoring the effective protection
of the lives and property of citizens’ ” and that the primary purpose of the federal Food,
Drug, and Cosmetic Act (21 U.S.C. §§ 342, 343 (2000)) is to protect the public health. Carty,
371 Ill. App. 3d at 789 (quoting Palmateer v. International Harvester Co., 85 Ill. 2d 124, 132
(1981)). We held that “to protect the public from the dangers associated with the use of
spoiled food products and the mislabeling of food products, employees of manufacturers of
food products must be able to freely report their concerns, as plaintiff attempted to do.”
Carty, 371 Ill. App. 3d at 789. Like the Food, Drug, and Cosmetic Act in Carty, the Safety
Act creates a comprehensive scheme relating to public safety.
¶ 47 Defendant cites Turner for the proposition that skier safety is too general to be a clear
mandate of public policy. In Turner, a respiratory therapist alleged that his hospital employer
terminated him in retaliation for advising an accreditation surveyor regarding the timing of
charting a patient’s file. Turner, 233 Ill. 2d at 498. Without alleging a violation of any
particular law or regulation, the employee stated that the practice violated “ ‘sound nursing
and medical practices,’ ” and “ ‘was not consistent with sound medical practices.’ ” Turner,
233 Ill. 2d at 498. Our supreme court determined that the employee’s retaliatory discharge
action required a more specific expression of public policy than “patient safety.” Turner, 233
Ill. 2d at 503.
¶ 48 This case is distinguishable from Turner, where the retaliatory discharge claim failed to
cite violations of specific standards or regulations. Here, plaintiff alleged that the clear
mandate of public policy of ensuring skier safety is rooted in the Safety Act, the regulations
promulgated by the Department of Labor, the inspections mandated by the Department of
Labor, and the common law that imposes on operators liability for unsafe ski lifts that cause
injury. In Turner, the plaintiff invoked subjective standards and practices, but in this case
plaintiff alleged multiple violations of a comprehensive scheme of safety-related statutes and
regulations.
¶ 49 b. Insubordination
¶ 50 Defendant also asserts that plaintiff engaged in insubordination, which created a
nonpretextual basis for his termination, and therefore the element of causation is not met and
his discharge was not retaliatory. Defendant argues that, even if taken as true, plaintiff’s
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allegations establish that he was discharged for insubordination in that he attempted to
countermand Fletcher’s order to the operator to operate the ski lift at full capacity, after
Fletcher had consulted with Carlson about the issue. Whether defendant discharged plaintiff
for insubordination or in retaliation for attempting to comply with safety regulations is a
factual question to be answered by the finder of fact. See Turner, 233 Ill. 2d at 501 n.1 (the
issue of retaliation is a question for the trier of fact to resolve). The existence of a factual
issue precludes dismissal under section 2-615 of the Code. See Marshall, 222 Ill. 2d at 429-
30 (a cause of action should not be dismissed under section 2-615 unless it is clearly apparent
that no set of facts can be proved that would entitle the plaintiff to recovery).
¶ 51 2. Section 2-619(a)(9): Affirmative Matter
¶ 52 Defendant next argues that the retaliatory discharge claim must be dismissed under
section 2-619(a)(9) of the Code because (1) plaintiff did not have an objective, good-faith
belief that the chair lift violated the law and (2) sections 2-201 and 2-109 of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745
ILCS 10/2-201, 2-109 (West 2012)) immunizes defendant from liability for the termination.
Section 2-619(a)(9) provides that an action may be dismissed when “the claim asserted
against defendant is barred by other affirmative matter avoiding the legal effect of or
defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2012). A ruling on a section 2-619
motion must “ ‘interpret all pleadings and supporting documents in the light most favorable
to the nonmoving party.’ ” Van Meter v. Darien Park District, 207 Ill. 2d 359, 367-68 (2003)
(quoting In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997)). However, conclusions
of law or fact unsupported by specific factual allegations are not to be taken as true. Buckner
v. O’Brien, 287 Ill. App. 3d 173, 176 (1997), aff’d, 182 Ill. 2d 12 (1998).
¶ 53 A ruling on a motion to dismiss pursuant to section 2-619(a)(9) is reviewed de novo. Van
Meter, 207 Ill. 2d at 368. In reviewing a ruling on a motion to dismiss under section 2-
619(a)(9), the relevant inquiry is “ ‘whether the existence of a genuine issue of material fact
should have precluded the dismissal or, absent such an issue of fact, whether dismissal is
proper as a matter of law.’ ” Sandholm v. Kuecker, 2012 IL 111443, ¶ 55 (quoting Kedzie &
103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)).
¶ 54 a. Good-Faith Belief of Violation
¶ 55 Courts examine both the intent of the employee and the motive of the employer in
evaluating retaliatory discharge actions based on whistleblowing. Undoubtedly, the intent of
the employee to blow the whistle is vital to a claim of retaliatory discharge. Michael v.
Precision Alliance Group, LLC, 2011 IL App (5th) 100089, ¶ 23. When a court evaluates the
intent of the employee, the test is whether the employee acted on a good-faith belief that the
employer was violating the law. Michael, 2011 IL App (5th) 100089, ¶ 24. Defendant
contends that the allegations in plaintiff’s retaliatory discharge claim establish that he lacked
a good-faith belief that defendant was violating the law. However, whether plaintiff had a
good-faith belief that defendant’s operation of the ski lift violated the law is a question for
the finder of fact to decide. As in the case of a section 2-615 motion to dismiss, the existence
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of a factual issue precludes dismissal under section 2-619(a)(9) of the Code. See Chandler
v. Illinois Central R.R. Co., 207 Ill. 2d 331, 341 (2003) (the existence of a genuine issue of
material fact precludes dismissal under section 2-619).
¶ 56 b. Tort Immunity Act
¶ 57 Finally, defendant argues that the retaliatory discharge claim warrants dismissal under
section 2-619(a)(9) of the Code because sections 2-201 and 2-109 of the Tort Immunity Act
confer immunity from liability for plaintiff’s termination. Section 2-201 of the Tort Immunity
Act provides that “[e]xcept 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 acting in the exercise
of such discretion even though abused.” 745 ILCS 10/2-201 (West 2012). Our supreme court
has recognized that section 2-201 “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).
¶ 58 Additionally, section 2-109 of the Tort Immunity Act provides that “[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 2012). 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.” (Internal quotation marks omitted.)).
¶ 59 Relying upon Smith v. Waukegan Park District, 231 Ill. 2d 111 (2008), plaintiff argues
that sections 2-201 and 2-109 of the Tort Immunity Act do not afford defendant immunity
for retaliatory discharge. In that case, the employee sued his employer, the Waukegan Park
District (District), for retaliatory discharge because he was terminated after filing a claim
under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2000)). Our supreme
court held that sections 2-201 and 2-109 of the Tort Immunity Act did not entitle the District
to dismissal of the retaliatory discharge claim pursuant to section 2-619(a)(9) of the Code.
¶ 60 The employee suffered a work-related injury that required medical treatment and time
off work, and he filed a workers’ compensation claim. Upon the employee’s return to work,
the District insisted that he submit to a drug and alcohol test. When the employee refused,
his supervisor terminated his employment. The complaint alleged that the drug-test demand
was “retaliatory harassment” for filing the workers’ compensation claim and that the
discharge was retaliatory.
¶ 61 Advocating dismissal under section 2-619(a)(9), the District argued that it was immune
under section 2-109 of the Tort Immunity Act because the supervisor made the termination
decision and only a municipal employer, and not its employees, can be liable for the tort of
retaliatory discharge. Smith, 231 Ill. 2d at 115. Our supreme court disagreed, emphasizing
that “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 in
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original.) Smith, 231 Ill. 2d at 117 (quoting 745 ILCS 10/2-109 (West 2002)). Concluding
that section 2-109 did not afford the District immunity, the Smith court held that “section 2-
109 immunity does not apply in cases of retaliatory discharge because the employer, not the
employee, ultimately causes the injury.” Smith, 231 Ill. 2d at 117.
¶ 62 Alternatively, the District argued that the combined effect of sections 2-201 and 2-109
of the Tort Immunity Act gave the District discretionary immunity because the supervisor’s
termination decision was a discretionary act and a determination of policy. Smith, 231 Ill. 2d
at 114. The District concluded that section 2-201 immunized the supervisor and that the
District was correspondingly immune pursuant to section 2-109. Again, the supreme court
disagreed, reiterating its position that “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.” Smith, 231 Ill. 2d at 118.
¶ 63 In determining that the Tort Immunity Act did not confer immunity on the District, the
Smith court emphasized that (1) section 4(h) of the Workers’ Compensation Act prohibits
any employer from discharging an employee for exercising his workers’ compensation rights
(820 ILCS 305/4(h) (West 2002)) and (2) section 2-101(c) of the Tort Immunity Act leaves
unaffected the liability, if any, of a local public entity or public employee under the Workers’
Compensation Act (745 ILCS 10/2-101(c) (West 2002)). Smith, 231 Ill. 2d at 119. The Smith
court stated that “[w]ithout 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.” Smith, 231 Ill. 2d
at 119.
¶ 64 Defendant argues that Smith denies immunity under sections 2-201 and 2-109 of the Tort
Immunity Act only in retaliatory discharge cases where the retaliation is provoked by the
filing of a workers’ compensation claim. Defendant distinguishes Smith from this case,
where plaintiff’s discharge allegedly was based on a disagreement with management over
the method of operating the ski lift. Defendant draws a distinction without a difference. The
rationale of Smith applies equally to this case, even though the statutory safeguards of section
4(h) of the Workers’ Compensation Act and section 2-101(c) of the Tort Immunity Act do
not lend additional support to plaintiff’s retaliatory discharge claim.
¶ 65 Consistent with Smith, we agree with plaintiff that sections 2-201 and 2-109 of the Tort
Immunity Act are not affirmative matter defeating plaintiff’s retaliatory discharge claim. As
in Smith, section 2-109 immunity does not apply to this claim of retaliatory discharge,
because defendant, not Fletcher or Carlson, ultimately caused the alleged injury to plaintiff.
See Smith, 231 Ill. 2d at 117. Neither Fletcher nor Carlson is the “pertinent actor” because
it is defendant that “acted” within the meaning of section 2-109 in a retaliatory discharge. See
Smith, 231 Ill. 2d at 118. Our conclusion that defendant is not immune from liability for
plaintiff’s discharge obviates the need to determine whether the acts of Fletcher and Carlson
actually were discretionary.
¶ 66 CONCLUSION
¶ 67 For the preceding reasons, the dismissal of plaintiff’s whistleblower claim is affirmed,
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the dismissal of plaintiff’s retaliatory discharge claim is reversed, and the cause is remanded
for further proceedings consistent with this opinion.
¶ 68 Affirmed in part and reversed in part; cause remanded.
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