8-1-11; Whistleblowers who did not report potential misconduct directly to state authority still pled sufficient facts to survive summary judgment of their retaliatory discharge claim

The Fifth District Appellate Court reversed a Circuit Court order granting summary judgment in favor of defendant in Michael v. Precision Alliance Group, No. 5-10-0089, (July 21, 2011). It held there were genuine issues of material fact regarding whether Plaintiffs were discharged in retaliation for whistle blowing activities.

The ruling indicates Precision grows, packages, and distributes seeds for agricultural use. Three plaintiffs worked for Precision at its Nashville, Illinois facility. It appears Precision began having problems with underweight seed bags and eventually investigators from the Illinois Department of Agriculture showed up to investigate a complaint of underweight seed bags. The plaintiffs were later terminated.

The three plaintiffs asserted they relayed information regarding locations and lot numbers of light seed bags to a former employee, who in turn supplied the information to the Department. Plaintiffs contend they were fired as a result of Precision’s belief they had played a role in the reporting to the Department and brought a complaint for retaliatory discharge. The Circuit Court granted summary judgment for Precision.

The Appellate Court ruled in order to maintain a claim for retaliatory discharge, an employee must prove the following:

(1) the employment was terminated by the employer,

(2) the discharge was in retaliation for action of the employee, and

(3) the discharge violates a clear mandate of public policy.

At issue in this matter are the elements of whether plaintiffs were discharged for protected activities and whether the discharge violated a clear mandate of public policy. Retaliatory discharge claims have emerged under two theories:

(1) A ‘clear mandate’ action, alleging that the complained-of conduct contravenes a clearly mandated public policy, but not necessarily a law; and

(2) A ‘citizen crime-fighter’ theory. Citizen crime-fighter cases usually involve an employee terminated for 'whistle-blowing' or telling of a coworker's commission of an alleged crime; however, the crime does not have to be work-related

The Whistleblower Act prohibits an employer from discharging an employee for “disclosing information to a government or law enforcement agency.” 740 ILCS 174/15 (West 2004). As the intent of an employee to blow the whistle is vital to a claim of retaliatory discharge, the test has been whether Plaintiffs acted on a good-faith belief that an employer was violating the law.

In this claim, the Circuit Court pointed out Plaintiffs did not actually report the alleged conduct of Precision directly to a government agency and plaintiffs could not sustain a claim of retaliatory discharge based on Precision’s mistaken belief plaintiffs had reported directly. In response, the Appellate Court held, viewing evidence in the light most favorable to Plaintiffs, the record supported the conclusion Plaintiffs were transmitting the information to the former employee with the explicit purpose that he work with the Department. It stated whether the reporting was directly to a government agency or relayed through another person is irrelevant to questions of whether Precision’s motive was retaliatory and whether Plaintiffs’ intent was to blow a whistle.

Furthermore, the Court added the mislabeling and distortion of seed weight as asserted by Plaintiffs is counter to the public policy of the Illinois Seed Law which is “to regulate the labeling, sale, offering, exposing or transporting for sale of agricultural, vegetable and other seeds; [and] to prevent misrepresentation thereof.” 505 ILCS Ann. 110/1, Historical & Statutory Notes, at 600 (Smith-Hurd 2004). The Court stated a discharge in retaliation for employees forwarding information regarding a violation of the Seed Law would support a claim for retaliatory discharge.

We note the Fifth District is known to be liberal and here it determined the record raised questions of material fact regarding the reported illegal activity and sequence of events and interactions with Precision and such questions precluded summary judgment. According to this ruling the whistle blowing need not be directly to an agency, but as long as there are facts indicating the intent was to get the information to the agency the claim can survive summary judgment. This article was researched and written by Matthew Ignoffo, J.D. Please do not hesitate to make inquiries to Matt at mignoffo@keefe-law.com.