Carty v. Suter Company, Inc.

No. 2--06--0408 Filed 2/14/07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
JACK CARTY, ) Appeal from the Circuit Court
) of De Kalb County.
Plaintiff-Appellant, )
)
v. ) No. 03--L--45
)
THE SUTER COMPANY, INC., ) Honorable
) Kurt P. Klein,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BYRNE delivered the opinion of the court:
Plaintiff, Jack Carty, filed a two-count complaint against defendant, The Suter Company, Inc.,
alleging retaliatory discharge. The trial court granted summary judgment, holding that plaintiff cannot
state a cause of action, and plaintiff timely appealed. We reverse and remand.
I. Background
Plaintiff was employed by defendant, a manufacturer of food products, from May 18, 1987,
through July 1998, and from February 1999 until his termination on May 22, 2002. In count I of the
complaint, plaintiff alleged that from December 2000 through May 2002, plaintiff worked, on
average, 6 days per week for 11 hours per day and "rarely received a lunch break," in violation of the
One Day Rest in Seven Act (820 ILCS 140/1 et seq. (West 2002)). On May 20, 2002, plaintiff
confronted the plant manager about the issue. On May 22, 2002, defendant terminated plaintiff.
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Plaintiff alleged that he was discharged in retaliation for reporting the lunch-break violation to the
plant manager and that his discharge violates public policy.
In count II, plaintiff alleged that around May 17, 2002, he saw several buttermilk containers
in the garbage with "use by" dates of May 25, 2002, and June 6, 2002. The buttermilk had been used
in salads bearing "use by" dates of June 24, 2002, and the salads had been shipped to customers. In
addition, plaintiff noticed that defendant had listed certain ingredients on a product label when those
ingredients were not in the product. According to plaintiff, defendant's "batch-making and labeling
practices were unlawful according to various federal laws and regulations." On May 20, 2002,
plaintiff confronted the plant manager about the "questionable" practices. On May 22, 2002,
defendant terminated plaintiff. Plaintiff alleged that he was discharged in retaliation for reporting his
concerns to the plant manager and that his discharge violates public policy.
Plaintiff was deposed on December 9, 2003. His testimony was consistent with the allegations
of his complaint. Sometime thereafter, defendant filed a motion for summary judgment. The record
does not contain defendant's motion; however, it does contain plaintiff's response and defendant's
reply. From these documents, and from the transcript of the hearing on the motion, we can glean
defendant's argument for summary judgment. It appears that defendant argued that because plaintiff
did not report the violations of state and federal law to government agencies, he cannot state a claim
under the Illinois Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)). In addition, defendant
argued that plaintiff cannot state a claim because the statutes involved, i.e., the One Day Rest in
Seven Act (820 ILCS 140/1 et seq. (West 2002)) and the Federal Food, Drug, and Cosmetic Act of
1938 (21 U.S.C. §342 (2000)), do not provide for a private right of action. In response, plaintiff
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clarified that his cause of action arises under the common-law tort of retaliatory discharge, not the
statutes themselves.
At the summary judgment hearing, the trial court initially noted that the facts do not present
a whistleblower situation and held that the Whistleblower Act does not apply. Thereafter, the court
granted defendant's motion, based on defendant's argument that the statutes at issue do not provide
for a private right of action. Plaintiff timely appealed.
II. Analysis
Summary judgment is proper when the pleadings, depositions, and affidavits demonstrate that
no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter
of law. 735 ILCS 5/2--1005(c) (West 2002). The party opposing summary judgment is not required
to prove his case at that stage, but he must present some factual basis arguably entitling him to a
judgment. Duncan v. Peterson, 359 Ill. App. 3d 1034, 1043 (2005). "If a plaintiff fails to establish
an element of the cause of action, then summary judgment for the defendant is proper." In re Estate
of Albergo, 275 Ill. App. 3d 439, 446 (1995). We review de novo an order granting summary
judgment. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
At the outset, it is necessary to clarify the precise issue before the court. In considering
defendant's motion for summary judgment, the trial court focused its analysis on whether a private
right of action can be implied under the One Day Rest in Seven Act (count I) and under the Federal
Food, Drug, and Cosmetic Act (count II). Because the court concluded that no implied private right
of action exists under either statute, it granted summary judgment for defendant. However, the trial
court missed the issue and, consequently, applied the wrong analysis. A review of plaintiff's
complaint makes clear that plaintiff is not attempting to bring a claim under either statute. Instead,
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he is raising common-law retaliatory-discharge claims, citing the statutes only as the sources of the
applicable public policies. Our analysis proceeds accordingly.
The common-law tort of retaliatory discharge was first recognized by our supreme court in
Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978). It is an exception to the general rule that an employer
may discharge an at-will employee at any time for any reason or for no reason. Palmateer v.
International Harvester Co., 85 Ill. 2d 124, 128 (1981). To state a claim of retaliatory discharge, a
plaintiff must allege "that he was discharged in retaliation for his activities and that his discharge
violates a clear mandate of public policy." Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 529 (1985);
King v. Senior Services Associates, Inc., 341 Ill. App. 3d 264, 267 (2003). "The foundation of the
tort of retaliatory discharge lies in the protection of public policy." Palmateer, 85 Ill. 2d at 133. The
law in this area aims to strike a proper balance among employers' interests in operating their
businesses efficiently, employees' interests in earning a livelihood, and society's interests in seeing its
public policies carried out. Palmateer, 85 Ill. 2d at 129.
Here, the parties raise no issue as to whether plaintiff was discharged in retaliation for his
activities. They do, however, contest whether his discharge violates clear mandates of public policy.
We hold that it does.
While there is no precise definition of a clearly mandated public policy, it can be said generally
that "public policy concerns what is right and just and what affects the citizens of the State
collectively. *** [A] matter must strike at the heart of a citizen's social rights, duties, and
responsibilities." Palmateer, 85 Ill. 2d at 130. Public policy has its origins in the state's constitution,
statutes, and judicial decisions. Palmateer, 85 Ill. 2d at 130. Public policy can also be found in
federal laws that are national in scope and affect citizens collectively. See Leweling v. Schnadig
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Corp., 276 Ill. App. 3d 890, 893 (1995) (and cases cited therein). Where a plaintiff cites a statute
as the basis for his retaliatory-discharge claim, the test for determining if the plaintiff has a 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. "The application of this test necessarily involves
determining what the public policy is behind the enactment or adoption of a particular provision. The
public policy underlying a statutory or constitutional provision is found by examining the history,
purpose, language and effect of the provision." Barr, 106 Ill. 2d at 527.
In count I, plaintiff alleged that he was discharged for reporting to the plant manager that he
was not receiving his lunch break, in violation of the One Day Rest in Seven Act (820 ILCS 140/1
et seq. (West 2002)), which provides, in pertinent part:
"Every employer shall permit its employees who are to work for 7½ continuous hours
or longer *** at least 20 minutes for a meal period beginning no later than 5 hours after the
start of the work period." 820 ILCS 140/3 (West 2002).
Whether this statutory provision provides a basis for a retaliatory-discharge cause of action is a matter
of first impression in Illinois.
At least one other jurisdiction has considered the issue. In Yates v. Hertz Corp., 285 F. Supp.
2d 1104 (M.D. Tenn. 2003), the plaintiff sued his former employer, alleging wrongful termination on
the basis of retaliatory discharge in violation of public policy. The plaintiff's claim was based on a
Tennessee statute that provided for a 30-minute unpaid rest break for employees scheduled to work
six consecutive hours (Tenn. Code Ann. §50--2--103(d) (1999 & Supp. 2002)). Yates, 285 F. Supp.
2d at 1112. In holding that the plaintiff stated a claim for retaliatory discharge, the court reasoned
as follows: "[The plaintiff] grounds his claim on the exercise of a right that has the imprimatur of the
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Tennessee legislature, having been memorialized in a statute [citation]. [The] plaintiff does not ask
the court to articulate public policy but merely to enforce it, as it has been established by the
legislature." Yates, 285 F. Supp. 2d at 1115. So too here. Our legislature has clearly mandated a
public policy that certain employees have statutory rights to 20-minute lunch breaks and that their
employers have statutory obligations to provide such breaks. As noted in Yates, to disallow plaintiff's
claim based on this statute would be to relieve defendant of its obligations under it. Yates, 285 F.
Supp. 2d at 1115. In holding for plaintiff, we are not declaring public policy; the legislature has
already done so. Thus, because count I establishes a cause of action for retaliatory discharge,
summary judgment for defendant on this count was improper.
With respect to count II, plaintiff alleged that he complained to the plant manager that
buttermilk with expiration dates of May 25, 2002, and June 6, 2002, was used in salads that had "use
by" dates of June 24, 2002. Plaintiff also complained of mislabeling on certain food items. Plaintiff
alleged that his discharge for expressing his concerns to the plant manager violates public policy.
Although in his complaint plaintiff did not specify the "federal laws" that were the basis for the public
policy, the record is otherwise clear that plaintiff contends that defendant's practices violated sections
342 and 343 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. §§342, 343 (2000)). The
question for this court is not whether the cited provisions apply in this case or even whether plaintiff
pleaded sufficient facts establishing that defendant violated the provisions; rather, the question is
whether the provisions "enunciate a public policy that plainly covers the situation to which the
plaintiff objects." Stebbings v. University of Chicago, 312 Ill. App. 3d 360, 367 (2000). We hold
that they do.
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The primary purpose of the Federal Food, Drug, and Cosmetic Act is the protection of public
health. United States v. An Article of Drug ... Bacto-Unidisk ..., 394 U.S. 784, 798, 22 L. Ed. 2d
726, 736, 89 S. Ct. 1410, 1418 (1969). Compliance with laws affecting the health of the community
"is a public concern of the highest magnitude." Lanning v. Morris Mobile Meals, Inc., 308 Ill. App.
3d 490, 493 (1999). Indeed, "[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." Palmateer, 85 Ill. 2d
at 132. "Failure to protect an employee who raises health concerns, even to his immediate supervisor,
may stifle the willingness of other employees to complain of similar problems. To the protect the
public, this result must be avoided." Lanning, 308 Ill. App. 3d at 493.
In order 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. Accordingly, we hold that the trial
court improperly granted summary judgment to defendant on count II.
III. Conclusion
Based on the foregoing, we reverse the order of the circuit court of De Kalb County granting
summary judgment for defendant, and we remand the case.
Reversed and remanded.
O'MALLEY and CALLUM, JJ., concur.
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