No. 2-13-0006 Opinion filed September 30, 2013 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

JOHN COLLINS, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellant, ) ) v. ) No. 12-L-59 ) BARTLETT PARK DISTRICT, ) Honorable ) Hollis L. Webster, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

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 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—

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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.

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¶ 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 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.

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¶ 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 gage 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

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¶ 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 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

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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.,

(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,

. 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,

.

¶ 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.,

(2011). The term

“refusing” under section 20 “means refusing; it does not mean ‘complaining’ or ‘questioning.’ ”

Sardiga,

.

¶ 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 actually

refused to participate in that activity. Instead, plaintiff has alleged that, when he saw the chair lift

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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,

.

¶ 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,

(2009) (quoting

Zimmerman v. Buchheit of Sparta, Inc.,

(1994)). Our supreme court, however,

recognizes an exception to the general rule, in an action for retaliatory discharge. Hartlein v. Illinois

Power Co.,

(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,

. The exception is “a limited and narrow cause of action.” Turner,

. If the employer has a valid, nonpretextual basis for discharging the employee, the element of

causation is not met. Hartlein,

. The employee must identify a clear and specific

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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,

. “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,

.

¶ 32 Generally, the issue of retaliation is a question for the trier of fact to resolve. Turner,

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,

.

¶ 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

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,

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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,

. Thus, our review is de novo. Turner,

.

¶ 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,

. 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,

. 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,

. Also, a clear mandate of public policy must be sufficiently specific to put

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employers on notice that employment decisions relating to the policy could expose them to liability.

Turner,

(“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,

. 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,

. The

Turner court explained the importance of balancing the interests of employees, employers, and the

public:

“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,

.

¶ 41 Clear mandates of public policy can be found in the constitution, statutes, judicial decisions,

and safety regulations. Wheeler v. Caterpillar Tractor Co.,

(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

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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,

(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,

. 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,

.

¶ 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

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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. See Turner,

. 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,

.

¶ 45 Our decision is supported by Carty v. Suter Co.,

(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,

. The employee alleged in his retaliatory discharge claim

that the practices were “unlawful according to various federal laws and regulations.” Carty,

. 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 (

, 343 (2000)) is to protect the public health. Carty,

(quoting

Palmateer v. International Harvester Co.,

(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,

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as plaintiff attempted to do.” Carty,

. 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,

. 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,

. Our supreme

court determined that the employee’s retaliatory discharge action required a more specific expression

of public policy than “patient safety.” Turner,

.

¶ 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 allegations

establish that he was discharged for insubordination in that he attempted to countermand Fletcher’s

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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,

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,

(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 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,

(2003) (quoting In re Chicago Flood Litigation,

(1997)). However, conclusions

of law or fact unsupported by specific factual allegations are not to be taken as true. Buckner v.

O’Brien,

(1997), aff’d,

(1998).

¶ 53 A ruling on a motion to dismiss pursuant to section 2-619(a)(9) is reviewed de novo. Van

Meter,

. In reviewing a ruling on a motion to dismiss under section 2-619(a)(9),

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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,

(quoting Kedzie & 103rd Currency Exchange,

Inc. v. Hodge,

(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,

. 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,

. 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 of a factual issue precludes dismissal under section 2-619(a)(9) of

the Code. See Chandler v. Illinois Central R.R. Co.,

(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

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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,

, 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,

(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

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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,

. 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 original.) Smith,

(quoting 745 ILCS

10/2-109 (West 2000)). 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,

.

¶ 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,

. 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,

.

¶ 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

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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,

. 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,

.

¶ 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,

. 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,

.

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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, 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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