Roberts v. Board of Trustees of Community College District No. 508

2019 IL 123594
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket Nos. 123594, 123599)
KENRICK ROBERTS, Appellee and Cross-Appellant, v. THE BOARD OF TRUSTEES OF
COMMUNITY COLLEGE DISTRICT NO. 508, Appellant and Cross-Appellee.
Opinion filed May 23, 2019.
CHIEF JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Justices Thomas, Kilbride, Garman, Burke, and Theis concurred in the
judgment and opinion.
Justice Neville took no part in the decision.
OPINION
¶1 Plaintiff, Kenrick Roberts, brought this action in the circuit court of Cook
County to recover damages from defendant, the Board of Trustees of Community
College District No. 508, d/b/a City Colleges of Chicago, following his termination
as director of medical programs at Malcolm X College, one of seven institutions of
higher education operated by defendant. Plaintiff’s complaint, as amended, was in
three counts. Count I asserted a cause of action for retaliatory discharge. Count II
alleged violation of section 20 of the Whistleblower Act (740 ILCS 174/20 (West
2014)). Count III sought recovery based on wrongful termination.
¶2 Defendant moved to dismiss the retaliatory discharge and Whistleblower Act
counts pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 2014)). The circuit court granted that motion, dismissed both counts with
prejudice, and ultimately made an express written finding under Illinois Supreme
Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just reason for delaying the
appeal.
¶3 On appeal, the appellate court affirmed the circuit court’s dismissal of
plaintiff’s Whistleblower Act claim but reversed its dismissal of his claim for
retaliatory discharge. 2018 IL App (1st) 170067. Both plaintiff and defendant then
petitioned this court for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Apr. 1, 2018). We
granted their respective petitions and consolidated the appeals.
¶4 For the reasons that follow, we hold that the appellate court was correct to
affirm dismissal of plaintiff’s Whistleblower Act claim but that it erred in reversing
the dismissal of plaintiff’s claim for retaliatory discharge. We therefore affirm in
part, reverse in part, and remand for further proceedings.
¶5 BACKGROUND
¶6 We take the following statement of facts largely from the appellate court’s
recitation of the allegations in plaintiff’s second amended complaint.
¶7 Defendant operates seven colleges located in Chicago, one of which is Malcolm
X College (Malcolm X). At all relevant times, plaintiff was the director of medical
programs at Malcolm X. As director of medical programs, plaintiff’s job duties and
responsibilities included vetting potential instructors to teach various courses and
curricula. Plaintiff was also responsible for ensuring that instructors assigned to
teach various courses, including but not limited to HeaPro 101, met the appropriate
accreditation standards and had the correct qualifications to teach their assigned
courses and curricula. HeaPro 101 includes the instruction of phlebotomy and
electrocardiograms (EKG).
-2-
¶8 On or about January 15, 2015, after becoming aware of complaints that the
instructor assigned to teach HeaPro 101 was unqualified, plaintiff met with that
instructor to discuss her qualifications. During the course of their meeting, the
instructor admitted that she had never taught phlebotomy before, that she was
unfamiliar with the requirements and certifications necessary to become a
phlebotomist, that phlebotomy was not her area of expertise, and that she was not
certified in phlebotomy.
¶9 Plaintiff concluded that the instructor was not qualified to teach HeaPro 101 or
the related curricula. After reaching this conclusion, he e-mailed his direct
supervisors, Dr. Micah Young, the dean of health sciences and career programs at
Malcolm X, and Dr. Mario De La Haye, the associate dean of health sciences and
career programs at Malcolm X, to complain that an unqualified instructor had been
assigned to the faculty without his input. His e-mail stated:
“In compliance with the City Colleges of Chicago policy and the College of
Health Science credentialing standards and requirements it is my responsibility
as Program Director of HeaPro 101 to review, evaluate and approve the
recommendation of each faculty member that is approved to teach in a program
which I am the director. Taking into consideration I had no input into the
department decision to appoint a nurse to teach HeaPro 101 without my review
of the credentials and necessary certifications and licenses put our programs
and students at risk. Please note that this is a breach of the standards that were
developed to ensure that students obtain the best outcomes moving forward
with their education in the medical field. Please note I am very concerned about
the direction in which we are traveling and wish to discuss this matter.”
After receiving plaintiff’s e-mail, Dr. Young e-mailed Dr. Anthony Munroe, the
President of Malcolm X, as well as the college’s provost, relaying plaintiff’s
concerns about the unqualified instructor assigned to teach HeaPro 101 and
questioning how to address the issue. Plaintiff also made verbal complaints directly
to Dr. Munroe regarding the assignment of an unqualified instructor to HeaPro 101.
He also protested that he had been intentionally excluded from the selection
process and stated that he refused to support the assignment.
¶ 10 On February 25, 2015, plaintiff e-mailed Dr. Munroe; Dr. Christopher
Robinson-Easley, the vice president of the college; and the college’s associate
-3-
provost, stating that the instructor had admitted to never having taught phlebotomy
before. The e-mail further indicated that plaintiff had since learned that this
unqualified instructor had abandoned HeaPro 101 and advised that another
unqualified instructor, one who was not properly certified to teach the EKG portion
of the course, had been assigned to complete the remainder of HeaPro 101. Plaintiff
also continued to complain that he had been excluded from the selection process of
both unqualified instructors despite his job responsibilities as director of medical
programs to vet and ensure the qualifications of the assigned instructors.
¶ 11 Upon receipt of plaintiff’s e-mail, Dr. Robinson-Easley, who plaintiff alleges
was responsible for selecting and assigning the unqualified instructors to teach
HeaPro 101, requested that plaintiff meet with her. After receiving Dr.
Robinson-Easley’s request, plaintiff e-mailed the executive director of labor and
employee relations for the college, stating that he wanted to document that he felt
uncomfortable about meeting with Dr. Robinson-Easley in light of his complaints
about the unqualified instructor.
¶ 12 Despite his discomfort, plaintiff met with Dr. Robinson-Easley the same day.
According to plaintiff, his complaints upset her, and she was unwilling to address
the problem. Thereafter, he was kept out of important meetings, discussions, and
decisions regarding programs that were within his area of responsibility as director
of medical programs.
¶ 13 Plaintiff continued to complain to Dr. Munroe about the unqualified HeaPro
101 instructors and defendant’s failure to address and rectify the problem. On June
15, 2015, the newly hired associate dean of health sciences and career programs at
Malcolm X, Roy Walker, told plaintiff that Dr. Robinson-Easley “has an axe to
grind against [him]” because of his complaints regarding the assignment of the
unqualified instructors.
¶ 14 On June 28, 2015, Dr. Munroe instructed plaintiff to file an equal employment
opportunity complaint against Dr. Robinson-Easley for retaliating against him by
keeping him out of important meetings and decisions in connection with his
complaints about the assignments of unqualified instructors. Plaintiff filed the
equal employment opportunity complaint form the same day. Approximately six
weeks later, on August 7, 2015, plaintiff was advised that he was terminated from
his director of medical programs position. No reason for the termination was given.
-4-
Up to that point, plaintiff had never been advised nor received any indication that
there were any issues or concerns regarding his performance or conduct. He had
never been reprimanded, never been given notice of the need for improvement of
his performance, and never been notified that he had engaged in any type of
improper conduct. This litigation followed.
¶ 15 As noted at the outset of the opinion, plaintiff’s complaint, as amended, was in
three counts. In count I, a claim for common-law retaliatory discharge, plaintiff
alleges the Higher Education Act of 1965 (HEA) (20 U.S.C. § 1070 et seq. (2012))
establishes a clearly mandated public policy of enabling students to obtain the
benefits of a postsecondary education through the financial help of federal and
state-funded programs and that defendant violated this public policy when it
terminated plaintiff due to his complaints regarding the improper appointment of
unqualified instructors, which he feared violated various provisions of the HEA
and defrauded students.
¶ 16 In count II, which alleges a violation of section 20 of the Whistleblower Act
(740 ILCS 174/20 (West 2014)), plaintiff claims he was terminated in retaliation
for his refusal to support defendant’s decision to appoint unqualified instructors.
Plaintiff further contends the appointment of the unqualified instructors violated
various provisions of the HEA and defrauded students.
¶ 17 In count III, for wrongful termination, plaintiff asserts he was terminated in
retaliation for filing an equal employment opportunity complaint against Dr.
Robinson-Easley regarding his complaints about the assignment of the unqualified
instructors. 1
¶ 18 Defendant filed a motion to dismiss counts I and II pursuant to section 2-615 of
the Code of Civil Procedure. The circuit court granted the motion and dismissed
both counts with prejudice. Count III, the wrongful termination claim, was not
challenged and remains pending.
¶ 19 At that time, plaintiff did not request leave to amend his complaint and, instead,
requested the inclusion of language pursuant to Illinois Supreme Court Rule 304(a)
1
Only count III, the wrongful termination claim, alleges that defendant retaliated against
plaintiff for filing an equal employment opportunity complaint. The filing of the equal employment
opportunity complaint is not the basis of count I, the retaliatory discharge claim.
-5-
(eff. Mar. 8, 2016). The circuit court granted plaintiff’s request and entered an order
finding that there was no just reason to delay the appeal. Plaintiff then filed a timely
notice of appeal. As noted above, the appellate court reversed the dismissal of the
retaliatory discharge claim alleged in count I but affirmed the dismissal of the
whistleblower claim under count II. 2018 IL App (1st) 170067. The viability of
count III, for wrongful termination, was not raised nor addressed.
¶ 20 ANALYSIS
¶ 21 The parties’ consolidated appeals from the appellate court’s judgment call on us
to consider whether counts I and II of plaintiff’s complaint, as amended, were
properly dismissed by the circuit court pursuant to section 2-615 of the Code of
Civil Procedure (735 ILCS 5/2-615 (West 2014)). A section 2-615 motion to
dismiss challenges the legal sufficiency of a complaint. In reviewing the
sufficiency of the complaint, we take all well-pleaded facts as true and construe the
allegations in the complaint in the light most favorable to the plaintiff. 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 recover. Our review
of an order granting a section 2-615 motion to dismiss is de novo. Henderson
Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 61.
¶ 22 We begin our discussion with the viability of plaintiff’s claim for retaliatory
discharge in count I. Under Illinois common law, an employer may discharge an
employee-at-will with or without cause. Barr v. Kelso-Burnett Co., 106 Ill. 2d 520,
525 (1985). Courts have acknowledged, however, that an employer’s ability to
discharge an employee without cause in an oppressive manner could undermine a
significant public policy. Michael v. Precision Alliance Group, LLC, 2014 IL
117376, ¶ 30. To maintain a proper balance between an employer’s interests in
efficiently and profitably operating a business, society’s interest in assuring its
public policies are followed, and an employee’s interest in earning a livelihood, the
courts have recognized a cause of action for retaliatory discharge. Palmateer v.
International Harvester Co., 85 Ill. 2d 124, 129 (1981). It is a limited and narrow
exception to the general rule that employees are at-will. Fellhauer v. City of
Geneva, 142 Ill. 2d 495, 505 (1991).
-6-
¶ 23 To state a claim for retaliatory discharge, an employee must plead that (1) the
employer discharged the employee, (2) the discharge was in retaliation for the
employee’s activities, and (3) the discharge violates a clearly mandated public
policy. Michael, 2014 IL 117376, ¶ 31. In the case before us, defendant does not
challenge the sufficiency of plaintiff’s complaint with regard to the first two of
these requirements. Its contention is that count I was fatally defective and therefore
properly dismissed because plaintiff fails to include adequate allegations regarding
requirement three, that the discharge of plaintiff violated a clearly mandated public
policy.
¶ 24 To succeed in a retaliatory discharge claim, the public policy alleged by a
plaintiff must be found in the state or federal constitutions and statutes and, when
they are silent, in Illinois or federal case law. Palmateer, 85 Ill. 2d at 130; see
Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502 (1985) (this court found a
clearly mandated public policy enunciated in federal legislation and regulations,
which were national in scope).
“The fact that a constitutional or statutory provision is cited in the complaint,
however, does not give rise to a retaliatory-discharge cause of action. The test
for determining whether the complaint states a valid cause of action is whether
the public policy clearly mandated by the cited provisions is violated by the
plaintiff’s discharge.” Barr, 106 Ill. 2d at 527.
¶ 25 Plaintiff’s cause of action is predicated on the proposition that Illinois has a
clearly mandated public policy that institutions of higher learning must provide
students the ability to obtain the benefits of a postsecondary education through
financial help from federal and state-funded programs. 2 In support of this
allegation, plaintiff cites Title IV of the HEA (20 U.S.C. ch. 28, subch. IV (2012)),
whose stated purpose is “to assist in making available the benefits of postsecondary
education to eligible students *** in institutions of higher education” by
2
The appellate court’s opinion continually refers to plaintiff’s alleged clearly mandated public
policy as “the right to obtain the benefits of postsecondary education through financial help of
federal and state programs.” (Emphasis added.) We note, however, that the allegations in plaintiff’s
complaint and the arguments he makes actually assert that institutions of higher learning must
provide students the ability to obtain the funding through federal programs for postsecondary
education. In analyzing plaintiff’s retaliatory discharge claim, we adhere to his characterization.
-7-
establishing various loan and grant programs. Id. § 1070. Plaintiff contends his
discharge for not supporting the assignment of the instructors undermined this
public policy because the appointment of the instructors violated various provisions
of the HEA, which placed Malcolm X students at risk of losing their HEA funding,
and defrauded students.
¶ 26 In challenging plaintiff’s retaliatory discharge allegations in count I, defendant
contends that plaintiff pleaded a “labyrinth of hundreds of pages of federal statutes
and regulations,” none of which provide a right to public aid for postsecondary
education nor “yield any specific requirements to which faculty must adhere.”
Therefore, in defendant’s view, plaintiff failed to cite a specific provision that
clearly mandates his asserted public policy.
¶ 27 “Established principles of judicial review counsel against consideration of
issues which are not essential to the disposition of the cause or where the result will
not be affected regardless of how the issues are decided.” In re Estate of Boyar,
2013 IL 113655, ¶ 36; see Peach v. McGovern, 2019 IL 123156, ¶ 64. The parties
here present and argue such an issue. Even if we were to agree with plaintiff and
find that the HEA clearly mandates a public policy that institutions must afford
their students the ability to obtain federal funding for postsecondary education, the
appellate court’s judgment regarding count I could not be affirmed because
plaintiff’s second amended complaint fails to sufficiently plead that his discharge
violated his asserted public policy.
¶ 28 The HEA establishes various loan and grant programs to financially assist
students in obtaining the benefits of a postsecondary education. 20 U.S.C. § 1070
(2012). The funds provided by HEA programs are given to eligible students, who
attend eligible institutions, based on various factors. See id. §§ 1087kk, 1091,
1094. In order to be an eligible institution, a postsecondary institution must sign a
program participation agreement, which provides the conditions and requirements
an institution must meet to initially and continuously participate as an eligible
institution under Title IV of the HEA. Id. § 1094; 34 C.F.R. § 668.14 (2014). The
Secretary of the United States Department of Education (Secretary) may terminate,
limit, or suspend eligibility if an institution fails to satisfy the statutory or
regulatory requirements. 20 U.S.C. § 1094(c)(1)(F) (2012); 34 C.F.R. § 600.41
(2010); 34 C.F.R. § 668.86 (2000).
-8-
¶ 29 Plaintiff first contends defendant put the HEA funding of Malcolm X students
at risk by violating section 1094(a)(21) of the HEA (20 U.S.C. § 1094(a)(21)
(2012)). Section 1094(a)(21) provides that an eligible institution, such as
defendant, for the purposes of Title IV of the HEA, must meet the requirements
established by the Secretary and accrediting agencies. Id. Section 668.14(b)(23) of
the Code of Federal Regulations also restates this requirement. 34 C.F.R.
§ 668.14(b)(23) (2014). The Secretary determines which accrediting agencies are
nationally recognized for the purposes of Title IV of the HEA in accordance with
section 1099b of HEA and its own regulations. 20 U.S.C. § 1099b (2012); 34
C.F.R. § 602 et seq.
¶ 30 According to plaintiff, the instructors defendant appointed to HeaPro 101 were
not qualified under the standards provided by the National Accrediting Agency for
Clinical Laboratory Sciences (NAACLS). Plaintiff’s reliance on the NAACLS
standards is misplaced. It is undisputed that, in 2015, the NAACLS was not
recognized by the Secretary as an accrediting agency for the purposes of Title IV
eligibility. Without being a recognized accrediting agency by the Secretary, the
NAACLS has no bearing on an institution’s eligibility under the HEA, and
defendant is not required to abide by its standards or requirements. Therefore,
defendant’s violation of NAACLS standards does not implicate the provisions of
20 U.S.C. § 1094(a)(21) or 34 C.F.R. § 668.14(b)(23), nor could it serve as the
basis for his allegation that defendant undermined his asserted public policy by
putting the funding of Malcolm X students at risk.
¶ 31 Count I of plaintiff’s second amended complaint also alleges violations of
section 1094(c)(3)(A) of the HEA (20 U.S.C. § 1094(c)(3)(A) (2012)) based on
substantial misrepresentations of the nature of defendant’s educational program
and the employability of its graduates. Under the HEA, the Secretary may impose
civil penalties, limit or suspend an institution’s participation, or initiate termination
of eligibility proceedings if an institution is found to have engaged in substantial
misrepresentation of the nature of its educational program, its financial charges, or
the employability of its graduates. Id. § 1094(c)(3) (2012); 34 C.F.R.
§ 668.71(a)-(b) (2013). Misrepresentation is defined as any false, erroneous, or
misleading communication made, directly or indirectly, in writing, visually, orally,
or through other means, including any statement that has the likelihood or tendency
to deceive. 34 C.F.R. § 668.71(c) (2012).
-9-
¶ 32 Plaintiff contends that defendant misrepresented the nature of its educational
program. Matters concerning the nature of an eligible institution’s educational
program include, but are not limited to, statements regarding “[t]he number,
availability, and qualifications, including the training and experience, of its faculty
and other personnel.” 34 C.F.R. § 668.72(i). The specific deficiency cited by
plaintiff is the appointment of the instructors.
¶ 33 Plaintiff’s complaint, however, lacks any contention that defendant made a
misrepresentation. There is no allegation that defendant promised a certain level of
quality of education or relayed any type of communication about the qualifications,
training, or experience of the instructors to any student, the Secretary, lenders, or an
accrediting agency. While plaintiff pleaded that the instructors were unqualified
based on the lack of training, he did not allege that defendant made a
communication about the instructor’s actual qualifications, training, or experience
that were untrue or misleading. Therefore, plaintiff’s second amended complaint
fails to sufficiently allege that defendant substantially misrepresented the nature of
its education program in violation of section 1094(c)(3) of the HEA.
¶ 34 Plaintiff also pleaded that defendant’s appointment of the alleged unqualified
instructors misrepresented the employability of its graduates because the students
enrolled in HeaPro 101 did not meet the certification requirements for
phlebotomists. Misrepresentations concerning the employability of graduates
include, but are not limited to, statements regarding “requirements that are
generally needed to be employed in the fields for which the training is provided.”
34 C.F.R. 668.74(f).
¶ 35 Similar to plaintiff’s allegation that defendant misrepresented the nature of its
educational program, plaintiff fails to assert that defendant made an untrue or
misleading communication regarding the requirements to become a phlebotomist
or EKG technician. Plaintiff’s second amended complaint also lacks sufficient facts
to infer that students who pass HeaPro 101 taught by the allegedly unqualified
instructors would have failed to meet some unspecified requirement of
certification. There is no allegation, much less supporting authority, that students
must be taught by certified phlebotomists/EKG technicians in order to become a
certified phlebotomist or EKG technician. In fact, plaintiff’s second amended
complaint is devoid of any requirements that a person must meet to become
- 10 -
certified. There is simply nothing in the second amended complaint, other than
plaintiff’s unsupported assertion, to conclude that the students enrolled in HeaPro
101 would not have met the certification requirements. See Simpkins v. CSX
Transportation, Inc., 2012 IL 110662, ¶ 26 (a plaintiff may not rely on conclusions
of fact unsupported by specific factual allegations); Buckner v. Atlantic Plant
Maintenance, Inc., 182 Ill. 2d 12, 24 (1998) (plaintiff’s conclusory allegations are
not sufficient to state a cause of action). Therefore, plaintiff’s retaliatory discharge
claim must also fail regarding the alleged misrepresentation of the employability of
the graduates.
¶ 36 Plaintiff also alleges that defendant violated its program participant agreement,
required by 20 U.S.C. § 1094 and 34 C.F.R. § 668.14, by appointing unqualified
instructors in violation of the requirements established by the accrediting agencies
and by substantially misrepresenting the nature of its educational program and
employability of its students. For the reasons stated above, plaintiff did not plead
facts sufficient to establish the activity of appointing the instructors violated
sections 1094(a)(21), (c)(3)(A) of the HEA or 34 C.F.R. § 668.14(b)(23). See
supra ¶¶ 28-33. Thus, plaintiff also failed to sufficiently plead that defendant
undermined the ability of students to obtain HEA funding by violating 20 U.S.C.
§ 1094 and 34 C.F.R. § 668.14.
¶ 37 Lastly, plaintiff contends that defendant defrauded the students enrolled in
HeaPro 101. An allegation that defendant made a misrepresentation, a basic
element of fraud, is absent from plaintiff’s second amended complaint. See In re
Witt, 145 Ill. 2d 380, 391 (1991). Therefore, plaintiff did not plead sufficient facts
to support this contention.
¶ 38 In addition to being factually deficient, plaintiff’s complaint also fails to
explain how any allegation of fraud, if proven, would undermine plaintiff’s
asserted public policy. Although fraudulent conduct is actionable, it is a separate
cause of action from a retaliatory discharge claim and is only relevant here to the
extent that it undermines the asserted public policy that students must have the
ability to obtain federal funding for postsecondary education. Plaintiff’s second
amended complaint and his brief before this court make no connection between the
alleged fraud and the potential loss of Malcolm X students’ HEA funding, through
a citation to a provision of the HEA that would provide grounds to terminate an
- 11 -
institution’s eligibility if it engaged in fraud, or otherwise. Plaintiff’s allegation that
his discharge violated his asserted public policy by defrauding students enrolled in
HeaPro 101 therefore consists of his own legal conclusions. Accordingly, this
allegation does not provide a basis for plaintiff’s retaliatory discharge claim.
¶ 39 In sum, plaintiff failed to allege sufficient facts to conclude that the Secretary
could terminate defendant’s eligibility under the HEA, which would result in the
loss of Malcolm X students’ HEA funding. Without alleging sufficient facts to
support that the appointment of the instructors placed the federal funding of
Malcolm X students at risk, plaintiff failed to sufficiently plead that his discharge
undermined a public policy that institutions must provide students the ability to
obtain the benefits of postsecondary education through the financial help of federal
and state-funded programs. Count I of plaintiff’s second amended complaint,
alleging retaliatory discharge, was therefore properly dismissed.
¶ 40 We turn then to count II of plaintiff’s complaint, which asserted a violation of
the Whistleblower Act (740 ILCS § 174/1 et seq. (West 2014)). The Whistleblower
Act provides employees protection from an employer’s retaliation for certain
disclosures and refusals and prohibits policies that prevent an employee from
disclosing information to a government agency that the employee reasonably
believes violate a state or federal law, rule, or regulation. 740 ILCS 174/10, 15, 20,
20.1, 20.2 (West 2014). Plaintiff predicates his claim on section 20 of the
Whistleblower Act, which provides “[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.” Id. § 20.
¶ 41 The appellate court determined plaintiff’s complaint was insufficient because a
“refusal to participate” must be preceded by an employer’s request or demand that
an employee engage in the illegal or unlawful conduct, something plaintiff did not
allege. 2018 IL App (1st) 170067, ¶ 41. Before this court, plaintiff takes issue with
that contention and argues that the appellate court was incorrect to hold that
“refusal to participate” requires a plaintiff to plead that an employer specifically
asked the plaintiff to perform an unlawful act. It was incorrect, in plaintiff’s view,
because it would impermissibly add another element to a claim under section 20 of
the Whistleblower Act.
- 12 -
¶ 42 Section 20 of the Whistleblower Act requires that an employee refuse 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 2014). To state a claim under section
20 of the Whistleblower Act, a plaintiff must therefore sufficiently allege not only
that he or she refused to participate in the activity but also that the activity violated
a statute, rule, or regulation.
¶ 43 The theory underlying count II of plaintiff’s amended complaint is that he was
terminated for having refused to participate in the appointment of the unqualified
instructors, something that would defraud students and violate 20 U.S.C.
§ 1094(a)(21), (c)(3)(A) and 34 C.F.R. § 668.14. These violations of law are the
same that plaintiff alleged to support his retaliatory discharge claim.
¶ 44 As explained in our analysis of count I, plaintiff’s second amended complaint
lacks sufficient facts to conclude that defendant’s appointment of the instructors
violated the standards of a recognized accrediting agency or misrepresented the
nature of its educational program or employability of its students. See supra
¶¶ 33-35. Plaintiff’s complaint therefore failed to sufficiently plead that
defendant’s appointment of the instructors violated 20 U.S.C. § 1094(a)(21),
(c)(3)(A), or 34 C.F.R. § 668.14. Similarly, plaintiff’s fraud allegation cannot serve
as the predicate for his claim under the Whistleblower Act because he fails to cite
any state or federal law, rule, or regulation that defendant violated resulting in fraud
on the students enrolled in HeaPro 101.
¶ 45 Therefore, irrespective of whether plaintiff refused to participate, his
Whistleblower Act action must nevertheless fail because plaintiff did not
sufficiently plead that the appointment of the instructors violated a statute, rule, or
regulation, as required by section 20 of the Whistleblower Act. 740 ILCS 174/20
(West 2014). Count II in plaintiff’s second amended complaint was therefore
properly dismissed.
¶ 46 CONCLUSION
- 13 -
¶ 47 For the foregoing reasons, we hold that plaintiff failed to sufficiently plead a
retaliatory discharge claim or a violation of the Whistleblower Act. The circuit
court therefore acted correctly when it dismissed counts I and II of plaintiff’s
second amended complaint, and the appellate court erred when it reversed the
dismissal of the retaliatory discharge claim. The judgment of the appellate court is
therefore reversed in part and affirmed in part, and the cause is remanded to the
circuit court for further proceedings consistent with this opinion.
¶ 48 Appellate court judgment affirmed in part and reversed in part.
¶ 49 Circuit court judgment affirmed.
¶ 50 Cause remanded.
¶ 51 JUSTICE NEVILLE took no part in the consideration or decision of this case.
- 14 -