Illinois Appellate Court Reverses Dismissal of Retaliatory Discharge Claim

On April 16, 2018, the Illinois Appellate Court, First District, reversed the dismissal of an Illinois common law retaliatory discharge claim.  Roberts v. Board of Trustees Community College, 2018 IL App (1st) 170067 (4/16/2018).  The plaintiff filed a lawsuit against his former employer alleging claims for common law retaliatory discharge, violation of the Illinois Whistleblower Act, and wrongful termination.  The circuit court dismissed the retaliatory discharge claim and whistleblower claim.  The First District reversed the dismissal of the plaintiff's retaliatory discharge claim, but affirmed the dismissal of his claim under the Whistleblower Act.  Illinois follows the employment at-will rule, which means that an employee who does not have a specified term of employment under an employment contract is subject to termination by the employer at any time for any or no reason, with or without notice.  However, Illinois recognizes an exception to the general employment at-will rule when the discharge violates a clear mandate of public policy.

This exception to the general rule acknowledges that under the common law, the parties to a contract may not incorporate in it rights and obligations which injure the public.  This exception represents the Illinois common law claim of retaliatory discharge.  To state a claim for retaliatory discharge under Illinois law, an employee must allege: (1) the employer discharged the employee; (2) in retaliation for the employee's activities; and (3) the discharge violates a clear mandate of public policy.  Retaliatory discharge is a tort claim under Illinois law, which is narrow in scope.  At-will employment remains the law in Illinois.  The policy behind the Illinois retaliatory discharge claim is to balance the employer's interest in operating a business, the employee's interest in earning a living, and society's interest in effectuating its public policies.

The issue on appeal was whether the plaintiff's retaliatory discharge claim states a violation of a clear mandate of Illinois public policy.  Because the tort of retaliatory discharge is concerned with the protection and enforcement of public policy, a plaintiff must demonstrate that the conduct in question contravenes a clearly mandated public policy, not necessarily a law.  The plaintiff was terminated when he complained about the assignment of allegedly unqualified instructors at a community college.  He alleged that his discharge violated a specific public policy--the right to obtain the benefits of a post-secondary education through federal and state funded programs. 

Illinois courts have limited retaliatory discharge claims to employment termination in retaliation for exercising worker's compensation rights or whistle-blower situations and refused to expand the tort to matters involving merely a private and individual grievance.  The First District held that the public policy behind the federal Higher Education Act of 1965 and Illinois' Higher Education Loan Act would be undermined if the defendant was allowed to discharge the plaintiff for complaining about the allegedly unqualified instructors.  In accepting public funding, a public college should be able to assist its students in achieving the required levels of learning and development of their intellectual and mental capacities and skills.  Firing an employee for complaining about allegedly unqualified college instructors would contravene this policy.  Therefore, the plaintiff's complaint demonstrates a violation of a clear mandate of public policy, and states a valid claim for retaliatory discharge.

However, the First District affirmed the dismissal of the plaintiff's Illinois Whistleblower Act claim.  The Illinois Whistleblower Act provides that an employer may not retaliate against an employee for refusing to participate in an illegal activity or reporting an illegal activity to a government agency.  To state a claim, a plaintiff must establish that he or she refused to participate in or reported to the government an illegal act, and that the employer retaliated because of the refusal or reporting.  A plaintiff must actually refuse to participate in the illegal activity to have a viable claim.  The plaintiff in this case did not allege that the employer requested or demanded his participation in the alleged illegal activity.  He only claimed that he refused to "cover things up" or "look the other way."  Without allegations that the employer requested or demanded that the plaintiff engage in the alleged illegal conduct and that he actually refused to do so, the plaintiff's complaint failed to state a valid Whistleblower Act claim.